'twenty  years  in  State's  Prison" 

THROUGH  A  JUDICIAL  BLUNDER 


.    ,    .  THE   CASE  OF  .    .    . 
ALFRED   SCHWITOFSKY 


TICK 
')    A    PLEA    FOR  JUSTICE 


'By 
REV.  JACOB  GOLDSTEIN 


PRICE     75c. 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

GIFT  OF 

Estate  of 
Klara  Sandrich 


'twenty  Vears  in  State's  Prison" 

THROUGH  A  JUDICIAL  BLUNDER 


.    .    .  THE   CASE   OF  ... 
ALFRED    SCHWITOFSKY 


THE  STORY  OF  AN  INJUSTICE 
AND    A    PLEA    FOR   JUSTICE 


REV.  JACOB  GOLDSTEIN 


Copyright  secured  and  duly  entered  according  to  act  of  Congress 

by 

JACOB   GOLDSTEIN. 
November,  1913. 


All  rights  reserved. 


Published  by    REV.   JACOB    GOLDSTEIN 


HV 


me  demanderez  peut-etre  pourquoi  je  m'in- 
teresse  si  fort  a  ce  Galas  qu'on  a  roue — c'est  que  je  suis 

homme."  j 

( Voltaire's  Correspondence. ) 


wr\  IDW    /D^in  wn  in«  HOKHB;  "» 

(76n  Masud — quoted  6y  Arnold  B.  Ehrlich.) 

"He  who  hath  the  Truth  on  his  side  is  the  Majority 
even  though  he  stand  alone." 


'All  that  one  owes  to  the  Dead  is  the  Truth." 

(Voltaire.) 


890286 


TABLE  OF  CONTNETS. 


Foreword    7 

The  Story  of  a  Judicial  Blunder: 

The  Crime   13 

Dale  in  Another  Case 17 

What  Did  Actually  Occur? 18 

The  Arrest 21 

Awaiting  Trial    24 

The  Indictment 26 

The  Trial   27 

The  Sentence 30 

The  Appeal 31 

The  Appeal  Denied 34 

The  Identification 36 

Appellate  Court 43 

The  Newly-Discovered  Evidence 44 

The  Scars  on  the  Hand — Their  Significance 46 

The  Jury's  Finding 49 

Dale  in  a  Third  Case 52 

The  District  Attorney  Interviewed 55 

What  Remains  To  Be  Done 57 

The  Case  of  Brand 58 

Weaknesses  of  Our  System : 

1.  "Assigned  Counsel"    60 

2.  "Second  Offenses" 64 

3.  Appeal  Time  Limit 69 

The  Chaplain's  Story 72 

The  Journalist's  Story : 

An  Open  Letter  to  the  Judge 89 

The  Prisoner  92 

Police  Persecution   

Probable  Innocence  95 


vi  TABLE   OF   CONTENTS. 

PAGE 

The  Judge  Interviewed 96 

A  Cry  from  "The  Tombs" 97 

A  "Frame-Up"? 100 

Deputy  Police  Commissioner  Dougherty  "Helps" . .  101 

Kuhne  in  Charge  105 

"The  Journalist"  Takes  Charge 107 

Gelsky's  Story 109 

A  Veteran's  Opinion 112 

The  Arrest  in  1908 113 

Letters  Mysteriously  Mislaid 118 

The  1908  Identification 121 

The  Curran  Investigating  Committee. 124 

The  People's  Story  (The  Evidence  at  the  Trial)  : 

Nettie  Palma 126 

Cross-Examination 127 

Re-Cross  Examination   128 

Theodore  B.  Dale 128 

Cross-Examination 131 

Anna  Hart  132 

Cross-Examination 132 

Nora  Murphy 133 

William  W.  Duggan 134 

Edwin  Denahm 135 

William  Brown 135 

Cross-Examination 136 

Recalled 137 

Alfred  Schwitofsky 137 

Cross-Examination , .  140 

Re-Direct  Examination 142 

Re-Cross  Examination   144 

The  Prisoner's  Story 147 

The  Story  of  Various  Witnesses : 

Alfred  Schwitofsk/s  Affidavit 161 

Leo  Gelsky's  Affidavit 163 

Frank  Harold's  Affidavit 165 

Edward  J.  Cousin's  Affidavit 167 

Dr.  Ransom's  Affidavits 168-9 

The  Judge's  Story 170 


JForeworb. 

When  the  recognised  machinery  for  the  administration 
of  justice  suffers  a  temporary  break-down  and  fails  to 
perform  its  functions  properly  there  remains  but  one 
resource  to  the  unfortunate  victim  of  that  failure — to 
appeal  to  the  High  Court  of  Public  Opinion. 

By  the  fact  of  your  American  citizenship  and  by  the 
chance  that  this  book  is  in  your  hands  you,  who  read  this, 
are  constituted  one  of  the  Judges  of  that  Court  of  Final 
Appeal. 

An  unhappy  wretch,  weak,  friendless,  poverty  stricken, 
has  suffered  a  grievous  injustice  and,  from  his  prison  cell 
cries  to  you  for  aid.  Shall  lie  cry  in  vain? 

//  you  are  of  the  same  faith  as  the  writer  you  are  re- 
minded of  God's  direction:  "Thou  shalt  pursue  only 
justice  *  *  *  thou  shalt  judge  the  people  ivith  right- 
eous judgment.  Thou  shalt  not  wrest  justice." 

If  you  are  not  of  his  faith  you  are  reminded  of  the 
beautiful  parable  in  your  own  Testament.  When,  here- 
after, there  shall  be  the  separation  of  the  sheep  from 
the  goats,  if  you  can  plead:  *  *  "and  when  we 
saw  thee  sick,  or  in  prison,  and  came  unto  theeP"  —then 
shall  the  King  reply:  "Inasmuch  as  ye  did  it  unto  one 
of  these,  my  brethren  *  *  *  ye  did  it  unto  Me." 

Shall  this  cry,  from  the  "least  of  these,"  be  unheeded? 

Read  this  book.  Read  it  to  the  end,  carefully  and  con- 
scientiously. Here  is  no  romance  but  a  sad,  true,  hideous 
story  of  human  frailty  and  human  injustice.  Every  effort 
has  been  made  to  present  a  clear,  succinct  statement  of 
facts,  and  to  present  it  as  soberly  and  dispassionately  as 
may  be.  If  I  have  not  been  always  successful  you  will 
remember  that  a  strong  sense  of  abominable  wrong  done 


8  FOREWORD 

has  struggled  for  expression  and  may  not  always  have 
been  wholly  repressed. 

There  will  be  found  repetition  of  facts.  This  repeti- 
tion is  deliberate  and  has  its  special  purpose.  The  state- 
ment is  made  up  by  contributions  from  different  people 
each  with  his  own  view-point'  and  his  individual  expres- 
sion. Each  repetition  really  shows  a  different  facet  of 
the  central  fact. 

You  are  entreated  to  read  to  the  very  last  word. 


WE  CHARGE: 

That  a  well-to-do  sexual  pervert,  of  infamous  char- 
acter, and  following  his  loathsome  practices  for  years, 
had,  for  years,  remained  undisturbed  by  the  police  though 
he  was  notorious  for  evil-doing; 

That  when,  at  length,  a  sordid  squabble  with  a  young 
blackguard  who  ministered  to  his  vices  threatened  him 
with  exposure,  under  conditions  which  made  it  impossible 
for  the  police  to  remain  blind  any  longer,  the  victim  and 
companion  of  his  vicious  practices  was  seized  and  jailed 
on  a  charge — technically  correct  from  the  legal  point  of 
view  but  repugnant  to  common-sense  and  the  common 
instinct  for  even-handed  justice — which  finally  led  to  his 
being  sentenced  to  a  reformatory,  not  for  the  offence 
against  public  morals,  but  for  demanding  payment  of 
what,  from  his  point  of  view,  was  due  to  him;  his  partner 
in  wrong-doing,  the  complainant,  going  scot-free; 

That  a  companion  of  this  youth,  concerned  in  an  at- 
tempt- to  bring  the  bilker  to  terms,  after  having  created 
a  great  commotion  and  caused  a  public  scandal  by  his 
attempt,  escaped  from  the  city ;  and 

That  the  police  arrested  an  unfortunate  wretch,  EN- 
TIRELY INNOCENT  of  all  offence  in  this  matter,  and 
fastened  the  crime  on  him; 

That  the  accusations  against  their  victim  slowly  grew 
in  gravity  until  at  length  he  stood  threatened  with  a  term 


FOREWORD  9 

of  imprisonment  which  would  in  all  probability  be  short- 
ened only  by  his  death; 

That  this  unhappy  victim  claims  that  the  charge  was 
deliberately  fastened  on  him  because  he  had  incurred 
the  enmity  of  certain  police  officials  who  knew  that  he  was 
cognisant  of  certain  irregularities  on  their  part;  for  he 
had  threatened  to  complain  to  their  superiors  of  the 
irregularities;  * 

That  deliberate  perjury  was  committed  by  the  com- 
plaining witness — which  perjury,  aided  by  the  mistaken 
identification  by  two  bewildered  and  dismayed  young  wo- 
men, and  the  total  absence  of  any  evidence  in  support  of 
the  statement  of  the  accused,  led  to  the  judicial  error  of 
his  conviction  of  crimes  he  did  not  commit; 

That  important  facts,  which  would  have  positively  con- 
vinced the  jury  of  his  innocence,  must  have  been  wilfully 
and  knowingly  suppressed  by  certain  police-officers  who 
could  not  have  failed  to  be  cognisant  of  these  facts  favor- 
able to  the  accused; 

That  there  can  be  shotvn  reasons  for  viewing  the  state- 
ment of  the  victim  in  this  affair,  that  certain  police  officers 
held  a  grudge  against  him,  in  a  more  receptive  spirit  than 
would  be  wise  in  other  cases; 

That  the  persistent,  shrewd  and  thorough  investiga- 
tion made  by  MR.  FRANK  MARSHALL  WHITE,  a  very  able 
American  newspaper  man,  well-known  in  three  great  cen- 
tres of  civilisation  on  two  continents,  whose  impartiality 
and  disinterestedness  in  the  matter  are  beyond  doubting 
—tends  to  show  that  not  alone  are  there  reasons  for 
believing  the  victim's  charges  of  police  persecution  in 
this  instance  but  that  he  was  most  probably  innocent  in 
a  former  trial  where  the  police  secured  conviction  and 
sentence  of  this  man  for  an  offence  committed  by  another. 

WE  FURTHER  CHARGE: 

That  this  victim  of  malice,  perjury  and  mistaken  and 


10  FOKEWORD 

suppressed  testimony  was  also  the  victim  of  impersonal 
folly  and  stupidity  due  to  the  defects  of  our  legal  system; 

That  he  was  tried  before  a  judge  whom  it  was  unwise 
to  entrust  with  the  conduct'  of  such  cases; 

That  he  ivas  prosecuted  by  officers  who  refused  to  listen 
to  any  proffer  of  testimony  favorable  to  accused; 

That  he  was  defended  by  indifferent  and  heedless  'as- 
signed' counsel  who  seem  to  have  been  convinced  that 
the  accused  was  insane  or  an  imbecile,  mainly  because  of 
the  apparently  incredible  nature  of  statements  which 
were,  nevertheless,  true. 

WE  FURTHER  CHARGE: 

That  this  deplorable  judicial  blunder  and  the  baffling 
opposition  of  our  legal  machinery  to  all  attempts,  so  far 
made,  to  rectify  the  error  prove  that  a  condition  of  things 
exists  which  demands  rectification; 

That,  for  the  public  safety  and  in  the  interests  of  jus- 
tice and  civilisation,  certain  amending  legislative  enact- 
ments seem  to  be  necessary; 

That  certain  existing  practices  must-,  at  all  costs,  be 
amended  and  reformed. 

AND  WE  CLAIM: 

That  since  we  seem  to  have  exhausted  every  recognised 
means,  but  one,  to  secure  justice  for  the  victim  and  so 
far  have  failed: 

That  the  one  remaining  means  must  now  be  tried. 

IT  IS,  TO  PETITION  THE  GOVERNOR  OF  THIS 
STATE  TO  APPOINT  A  JUDICIAL  COMMISSION 
EMPOWERED  TO  RE-TRY  THIS  CASE  AND 
EVERYBODY  CONNECTED  WITH  IT  AND  WITH 
POWER  TO  FREE  THE  INNOCENT  AND  PUNISH 
THE  GUILTY. 

And  you  are  entreated  to  help  this  movement. 


FOEEWOKD  11 

One  last  word.  The  plan  of  publishing  this  book  and 
its  issuing  are  the  result  of  my  own  determination.  I 
have  not  sought  advice  in  the  matter  from  anybody  and 
where  it  has  been  spontaneously  tendered — almost  in- 
variably taking  the  shape  of  discouraging  the  idea — it 
has  been  disregarded.  I,  alone,  am  responsible  for  the 
publication  of  this  book.  Nobody  belonging  to  any  organ- 
isation or  establishment  by  which  I  am  employed  or  with 
which  I  am  connected  can  justly  be  charged  with  having 
had  any  hand  in  the  issuing  of  this  book.  Without  ex- 
ception, those  who  may  be  deemed  my  "official  superiors" 
knew  nothing  of  my  plan  and  will  know  nothing  of  it 
until  this  book  is  published. 

JACOB  GOLDSTEIN, 

Rabbi,    Temple   Beth    Sholom,   Bensonhurst,   and   Jewish   Chaplain 
Sing  Sing  &  'Tombs'  Prisons. 

175  Bay  29th  St.,  Brooklyn. 
25th  September,  1913. 


TWENTY  YEAES  IN  STATE'S  PRISON  13 


Storv  of  a  Deplorable  Judicial  Blunder, 

BRIEF  ON  APPEAL  TO  THE  HIGH  COURT  OF  PUBLIC  OPINION. 
THE  CRIME. 

On  the  morning  of  Thursday,  the  19th  day  of  January, 
1911,  Miss  Nettie  Palma,  employee  of  Theodore  B.  Dale, 
a  ladies'  tailor  who  conducted  his  business  at  71  West 
45th  Street,  heard  the  street  door  bell  ring.  She  opened 
the  door  and  saw  a  man  who  announced  himself  as  "the 
telephone  man."  She  admitted  him  and  went  upstairs 
to  the  second  floor,  where  the  dress-making  work  was 
done.  A  little  while  later  she  was  called  downstairs  by 
her  employer,  and  there  was  the  man,  whom  she  had  ad- 
mitted, at  bay.  He  was  trying  to  leave  the  place,  but 
Dale  would  not  permit  it.  Dale  called  the  colored  maid, 
Anna  Hart,  and  told  her  to  stand  at  the  door  and  prevent 
the  man  from  leaving.  The  man  drew  a  revolver,  and 
pointing  it  at  Dale,  threatened  to  shoot.  He  turned  and 
threatened  Anna  Hart  also,  who  then  let  him  open  the 
door  and  go.  As  soon  as  he  reached  the  street  he  ran, 
with  Dale  and  Anna  Hart  pursuing  him  and  calling  for 
help. 

Theodore  B.  Dale  was  a  successful  ladies '  tailor  who  had 
amassed  considerable  money  through  his  business,  and 
who  was  well  known  in  certain  circles  in  New  York  City. 
It  is  well  that,  in  order  to  understand  all  that  follows, 
the  reader  should  at  once  be  apprised  of  the  fact  that 
Dale — who  appears  to  have  been  a  shrewd  man  of  busi- 
ness and  is  said  to  have  been  otherwise  quite  mentally 
active,  for  he  is  reported  to  have  read  widely — was  an 
unfortunate  degenerate  and  moral  lunatic.  It  has  been 


14 

amply  proved  that  for  years  he  belonged  to  the  unhappy 
class  of  creatures  dealt  with  by  Krafft-Ebbing  in  his 
"Psychopathia  Sexualis."  It  has  been  established  that 
he  was  a  practitioner  of  unnatural  sexual  practices  for 
fully  twenty  years.  The  writer  has  spoken  to  detectives 
and  'men  about  town,'  who,  while  insisting  on  the  sup- 
pression of  their  names  and  demanding  a  promise  that 
they  be  not  called  upon  to  give  evidence  in  the  case,  have 
assured  him  that  Dale  was  one  of  the  recognized  leaders 
of  an  infamous  coterie  of  evil-doers  who  have  for  years 
infested  New  York,  and  whose  practices  have  given  this 
city  a  reputation  for  moral  vileness  of  which  respec- 
table New  Yorkers  will  be  ashamed  to  learn. 

That  Dale's  practices  must  have  been  known  to  the 
detectives  and  plain-clothes  men  of  our  Police  Force  it  is 
impossible  to  doubt.  All  this  is  emphasized  at  this  point 
to  account  for  the  statement  that  what  happened  on  the 
morning  of  January  19th  in  Dale 's  house  cannot  be  defin- 
itely told,  for  Dale  was  alone  with  the  pretended  tele- 
phone, man  for  a  period  of  at  least  ten  minutes,  and  we 
have  only  Dale's  story  as  to  what  occurred.  As  will  be 
seen  shortly,  Dale  had  very  strong  reasons  for  giving  an 
untruthful  account  of  what  happened  between  him  and 
the  visitor.  No  reliance  may  be  placed  on  his  uncor- 
roborated statement. 

From  the  evidence  of  Miss  Nora  Murphy,  another  em- 
ployee of  Dale,  whose  duty  is  was  to  attend  to  telephone 
calls,  it  appears  that  someone  had  called  up  Dale's  house 
over  the  telephone  on  the  day  before  and  stated  that  a 
telephone  was  to  be  put  into  the  house  next  door,  and  that 
the  company  would  have  to  cut  off  Mr.  Dale 's  service  for 
an  hour  in  the  morning.  When  the  visitor  appeared  on 
the  morning  of  the  19th  she  was  upstairs,  but  after  the 
lapse  of  time  indicated  previously  she  was  called  down- 
stairs by  Dale,  who  told  her  to  inquire  of  the  Telephone 
Company  if  they  had  really  sent  a  man  to  fix  the  tele- 


TWENTY  YEAES  IX  STATE'S  PRISON  15 

phone.  An  answer  in  the  negative  was  given.  She  was 
sure  that  the  man  who  was  there  was  the  man  who  had 
'phoned,  because  she  recognized  the  sound  of  his  voice 
and  because  her  interlocutor  had  spoken  in  broken  Eng- 
lish. The  reader  would  do  well,  at  this  point,  to  turn  to 
that  part  of  "The  People's  Story"  which  contains  the 
evidence  of  this  young  girl,  where  it  will  be  clearly  seen 
that,  according  to  her  own  statement,  she  had  not  heard 
the  man  who  was  there  on  the  morning  of  the  19th  utter  a 
word  on  that  day. 

A  third  witness  was  Anna  Hart,  a  colored  woman,  maid 
or  housekeeper  in  Dale's  employ.  She  asserted  that  she 
saw  the  visitor  as  she  was  leaving  the  parlor  when  she 
was  clearing  away  the  breakfast  things,  and  that  he  had 
a  revolver  in  his  hand  with  which  he  threatened  her,  and 
that  in  consequence  she  moved  away  from  the  door,  which 
she  had  held  shut  at  the  direction  of  Dale,  in  fear.  When 
the  visitor  ran  away  from  the  house  she  and  Dale  fol- 
lowed him. 

Midway  between  Dale 's  place  and  Fifth  Avenue  a  taxi- 
cab  starter  for  the  Hotel  Webster  named  Frank  Harold, 
caught  the  fugitive  who  was  flourishing  a  pistol  in  his 
hand,  grappled  with  him  and  wrested  the  weapon  from 
his  hand,  holding  the  man  thereafter  until  the  pursuers 
came  up.  What  happened  in  the  crowd  that  soon  col- 
lected can  be  gathered  from  the  affidavit  of  Frank  Harold 
and  from  the  evidence  given  in  "The  People's  Story." 

Harold  let  the  fugitive  go  and  then  "broke"  the  re- 
volver he  had  wrested  from  him.  He  found,  according 
to  his  affidavit,  that  the  pistol  only  contained  two  blank 
cartridges.  Harold  later  on  handed  over  the  unloaded 
pistol,  exactly  as  he  had  taken  it  from  the  fugitive,  to  De- 
tective Edward  J.  Cousin  of  the  Thirty-fifth  Precinct 
whose  affidavit  that  he  took  the  unloaded  pistol  with  the 
two  blank  cartridges,  from  Harold,  will  also  be  found 
on  a  later  page. 


16  TWENTY  YEARS  IN  STATE'S  PRISON 

After  Harold  had  freed  the  fugitive  he  felt  a  sense  of 
discomfort  at  his  finger  tips.  Taking  out  a  pocket-knife 
he  scraped  from  under  his  finger  nails  minute  pieces  of 
skin  from  the  fugitive's  wrist.  As  he  states  in  his  affi- 
davit: "In  the  struggle  between  the  said  unknown  man 
and  myself  I  got  hold  of  the  wrist  of  the  said  unknown 
man,  and  my  fingers  scratched  the  left  wrist  and  tore  the 
skin  thereon  slightly.  I  am  sure  that  the  person  whom  I 
got  hold  of  at  the  said  time  and  place  bore  marks  of  the 
struggle,  particularly  the  said  back  or  outside  portion  of 
the  wrist  was  injured  and  the  skin  broken. ' ' 

Here  then  are  two  points  of  great  significance  in  the 
case,  depending  on  the  evidence  of  two  absolutely  dis- 
interested witnesses,  Frank  Harold  the  chauffeur,  and 
Detective-Sergeant  Edward  J.  Cousin.  To  these  two 
points  the  attention  of  the  reader  is  directed,  and  the 
reader  is  entreated  not  to  let  the  following  two  facts 
of  capital  importance  in  the  case  escape  his  memory  at 
any  time. 

One. — That  the  man  who  called  on  Dale  had  a  pistol 
which  only  contained  two  blank  cartridges,  the  balance 
of  the  chambers  being  unloaded. 

Two. — That  the  man  who  fled  on  that  morning  from 
Dale's  door  had  the  back  of  his  hand  plowed  by  the  finger 
nails  of  Harold. 

It  is  true  that  Harold  speaks  of  tearing  the  skin  lightly, 
but  the  abrasion  must  have  been  much  more  serious,  as 
the  skin  came  away  under  Harold's  finger  nails.  When 
Harold  was  personally  interviewed  he  dwelt  by  no  means 
so  lightly  upon  the  scratching  of  the  skin.  He  observed 
that  it  would  be  easy  to  identify  the  man  who  was  there, 
because  he  would  bear  the  traces  of  his  (Harold's)  finger- 
nails for  some  time  to  come.  "I  have  often  wondered 
why  I  was  not  called  as  a  witness  at  Schwitof sky's  trial," 
Harold  also  remarked.  In  truth,  it  is  a  matter  for  amaze- 
ment that  these  two  facts  of  the  unloaded  pistol  and  the 


TWENTY  YEARS  IN  STATE'S  PRISON  17 

special  marks  ivhich  should  have  made  identification  so 
easy,  should  not  have  been  brought  out  by  the  Deputy 
Assistant  District  Attorney,  who  must  have  had  Harold's 
statement  together  with  that  of  Cousin  and  the  record  at 
the  Property  Clerk's  Office  at  Police  Headquarters 
brought  under  his  notice. 

DALE  IN  ANOTHER  CASE. 

On  the  30th  of  January,  1911,  a  young  man  named  Leo 
Gelsky  was  arrested  on  a  charge  of  attempted  blackmail 
preferred  by  Theodore  B.  Dale,  who  was  also  complaining 
witness  in  the  'Schwitofsky  case,'  with  which  this  book 
treats.  The  attempted  blackmail  was  constituted  by  a 
statement,  in  a  letter  presented  to  Dale  by  a  messenger 
from  Gelsky  on  the  date  given,  that  Dale  had  committed 
(and  the  crime  was  described  in  the  plainest  of  old  Saxon 
English)  a  filthy  variation  of  an  unnatural  offense  on 
the  writer  (Gelsky)  and  in  doing  so  had  injured  him. 
As  a  douceur,  or  payment  for  damage  done,  Gelsky  claims 
that  Dale  gave  him  a  promissory  note  for  $100. 

Gelsky,  in  the  letter  to  Dale,  claimed  the  payment  of 
the  $100  and  threatened  that  in  default  of  such  payment 
he  would  lay  the  whole  case  before  the  District  Attorney. 
The  letter  was  forwarded  through  an  Italian  boy  whom 
Gelsky  met  on  the  street,  and  to  whom  he  gave  a  quarter 
to  deliver  the  message.  When  arrested  Gelsky  admitted 
that  he  was  the  writer  of  ;the  letter,  and  stated  that  the 
claim  was  a  just  one,  and  that  if  it  had  been  for  $1000 
he  would  have  been  entitled  to  claim  that  sum.  Gelsky, 
as  the  reader  will  see  from  his  affidavit,  states  that  on  the 
MORNING  OF  THE  19TH  OF  JANUARY,  he  sent  a 
companion  with  the  promissory  note  for  $100  to  collect 
the  amount  therein  named.  He  had  previously  attempted 
to  see  Dale  himself  in  the  matter,  but  found  that  Dale's 
servants  had  been  instructed  to  refuse  him  admission. 


18 

He  refuses  to  disclose  the  name  of  the  man  who  was  his 
messenger.  Dale,  he  says,  retained  possession  of  the 
promissory  note,  drove  the  "collector"  from  the  door  and 
followed  him,  crying  "Stop  thief."  Gelsky  then  recounts 
the  story  of  the  crowd,  the  holding  up  by  the  chauffeur, 
the  Rabelaisian  incriminations  between  Dale  and  the  fugi- 
tive, and  the  freeing  of  the  fugitive.  Gelsky  was  sen- 
tenced to  Elmira,  to  the  last  maintaining  that  he  had  not 
attempted  blackmail,  but  that  he  had  demanded  a  debt 
justly  due  to  him.  He  was  only  half-hearted  in  his  feel- 
ing of  shame  at  the  filthy  nature  of  the  relations  between 
himself  and  Dale,  but  there  never  could  have  been  a  man 
who  more  stoutly  maintained  the  moral  justice  of  a  de- 
mand for  money  than  did  Gelsky. 

WHAT  DID  ACTUALLY  OCCUE? 

The  reader  will  perceive  that  he  has  now  reached  a 
point  when  he  will  be  asked  to  judge  between  the  contra- 
dictory statements  of  Dale  and  Gelsky  as  to  what  actually 
occurred  during  the  ten  minutes  when  Dale  and  the  fugi- 
tive, on  the  morning  of  the  19th  of  January,  were  alone 
together.  The  reader,  on  consulting  "The  People's 
Story"  as  told  in  the  'Court,  will  find  that  this  is  what 
occurred,  according  to  Dale's  statement. 

On  the  18th  of  January  he  saw  Schwitofsky  standing 
outside  of  his  house  in  the  company  of  another  man. 
This  other  man  had  been  to  his  house  to  apply  for  alms. 
When  he  first  saw  the  defendant  in  the  hall  on  19th 'of 
January  Dale  had  just  left  the  dining  room  and  had  come 
out  to  go  to  the  hall  to  get  his  overcoat.  He  saw  the  man 
standing  on  the  sill  of  the  hall-door  where  the  'phone  was, 
with  a  piece  of  wire  in  his  hand.  His  cook  came  and 
asked  what  the  man  was  doing  there,  and  Dale  said  he 
thought  he  was  there  to  fix  the  telephone.  He  then  put 
on  his  overcoat  and  walked  to  the  stoop.  From  the  door 


TWENTY  YEARS  IN  STATE'S  PRISON  19 

he  saw  in  the  street  the  man  who  had  been  at  his  house  on 
the  previous  day  to  ask  for  alms.  He  recognized  him 
and  then  recognized,  by  association  of  memory,  the  man 
in  the  telephone  booth.  He  went  back  and  asked  de- 
fendant what  he  was  doing  there.  Defendant  answered 
that  he  was  there  from  the  New  York  Telephone  Com- 
pany. Dale  demanded  a  sight  of  his  badge,  and  defend- 
ant answered,  "Here  is  my  book  of  instructions,"  to 
which  Dale  replied,  "That  won't  do.  I  want  to  see  a 
badge."  Defendant  said  he  had  forgotten  his  badge. 
Witness  then  called  Nora  Murphy,  instructed  her  to  in- 
quire of  the  Telephone  Company  whether  they  had  sent 
the  man,  and  when  the  answer  "No"  came  back,  he  told 
the  cook  to  guard  the  door  while  he  went  for  a  policeman. 
What  followed  has  been  told  from  the  statements  of  the 
other  witnesses. 

In  answer  to  questions  by  the  Court  itself,  he  said 
that  he  was  only  about  three  feet  away  from  the  defend- 
ant when  he  flourished  the  revolver,  and  that  he  saw 
cartridges  in  it  at  the  time  the  revolver  was  pointed  at 
him. 

Was  Dale  telling  the  truth,  or  did  the  man  who  came 
there  see  Dale  alone  in  the  ten  minutes  to  which  Nettie 
Palmer  testified  as  having  intervened  between  her  admis- 
sion of  the  man  and  her  being  called  downstairs  again  by 
her  employer?  This  is  really  the  crux  of  the  story,  and 
the  reader's  attention  is  strongly  directed  to  this  point 
also. 

Dale,  as  shown  by  the  events  of  December,  1912,  and 
March,  1913,  which  are  fully  recounted  later  on,  had  his 
own  reasons  for  coloring  the  truth.  The  writer  has  had 
made  to  him  certain  statements  which  go  to  prove  quite 
conclusively  that  Dale  lied  in  his  account  of  what  took 
place.  The  persons  making  the  statements  were,  it  so 
happens,  so  peculiarly  in  official  relations  with  Dale,  that, 
unless  under  oath  in  a  Court  of  Law,  they  do  not  feel 


20  TWENTY  YEARS  IN  STATE'S  PEISON 

free  to  repeat  these  statements  publicly.  The  truth  and 
the  value  of  their  evidence  are  beyond  cavil.  But  in  or- 
der to  help  justice  and  to  clear  up  this  disputed  point  they, 
with  much  reluctance  and  only  after  consultation  with 
their  superior  officers  as  to  the  propriety  of  their  making 
the  statements,  went  so  far  as  to  assure  the  writer  that 
it  was  within  their  knowledge  that  Dale  committed  sui- 
cide  in  March,  1913,  because  he  was  afraid  that  he  would 
be  interrogated  on  the  old  story  of  his  evidence  against 
Schwitofsky,  and  that  he  would  be  forced  to  admit  that 
he  had  committed  perjury  on  that  occasion. 

So  far,  then,  as  can  be  judged  from  the  transcript  of 
the  evidence,  the  jury  assumed  that  the  intention  of 
Schwitofsky  (and,  of  course,  they  appear  to  have  been 
satisfied  that  he  really  was  the  man  who  went  to  Dale's 
house  on  the  morning  of  the  19th  of  January)  was  to  com- 
mit a  crime,  and  that  in  order  to  place  himself  in  a  posi- 
tion to  commit  the  crime  he  gained  admission  under  a 
false  pretense  that  he  was  a  telephone  repair  man.  This 
gaining  of  admission  under  a  false  pretense  by  a  man 
who  intended  to  commit  a  crime  after  gaining  entrance 
constituted  the  legal  crime  of  '  Burglary  in  the  Second  De- 
gree.' The  jury  also  seem  to  have  been  satisfied  that 
the  pistol  with  which  Dale  and  the  colored  maid  are  said 
to  have  been  threatened  was  loaded.  This  constituted 
the  legal  crime  of  'Felonious  Assault  in  the  First  Degree.' 
Now,  if  it  can  be  shown  (and  the  writer  is  firmly  con- 
vinced that  this  is  the  truth)  that  the  man  who  gained  en- 
trance on  ~L9th  January  did  so  to  collect  a  debt  then  no- 
body committed  the  Burglary  in  the  Second  Degree;  and 
if  it  can  be  shown,  as  the  writer  is  firmly  convinced  is  the 
truth,  that  the  pistol,  which  is  said  to  have  been  flourished 
in  the  face  of  Dale  and  the  colored  housekeeper,  was  un~ 
loaded,  then  nobody  committed  the  crime  of  Felonious 
Assault  in  the  First  Degree;  and  if  it  can  be  shown  that 
Alfred  Schwitof  sky's  wrist  bears  no  signs  of  the  scars 


TWENTY  YEARS  IN  STATE'S  PRISON  21 

caused  by  the  digging  of  Frank  Harold's  nails  into  the 
back  of  the  left  hand  of  the  fugitive  when  the  pistol  was 
wrested  from  him,  then,  whoever  it  was  who  entered 
Dale's  house  on  the  morning  of  the  19th  of  January,  IT 

WAS  NOT  ALFRED  SCHWITOFSKY. 


THE  ARREST. 

On  the  night  of  the  first  of  February,  1911,  Officer 
William  Brown  of  the  Detective  Bureau  went  to  Mills 
Hotel  No.  2  in  Bivington  Street  and  arrested  Alfred 
Schwitofsky  on  suspicion  of  having  committed  burglary 
in  the  house  of  Dale  on  the  19th  of  January.  Prisoner 
said,  according  to  Brown's  statement,  " That's  a  mistake. 
I  will  accompany  you  to  the  complainant,  and  if  the  com- 
plainant identifies  me,  all  right.  I '11  sue  him."  The  de- 
tective then  took  his  prisoner  to  Dale's  house,  where 
Dale  identified  him.  Next  morning  he  was  charged  be- 
fore Magistrate  0  'Connor  in  the  Police  Court,  and  there 
identified  positively  by  Dale  and  the  three  women  in  his 
employ.  The  prisoner  sat  among  the  audience,  and  each 
witness  went  over  and  placed  a  hand  on  Schwitof sky's 
shoulder  and  said,  ''That's  the  man." 

This  account  follows  the  story  elicited  in  the  witness- 
chair  from  Brown  who  testified  that  the  arrest  was  in 
consequence  of  information  Dale  had  given  him.  Noth- 
ing in  the  testimony  of  Brown  gave  any  indication  of  the 
nature  of  the  information  he  received,  or  how  it  pointed 
to  Schwitofsky,  but  we  may  take  it  for  granted  that 
Brown  was  on  the  lookout  for  a  man,  probably  answering 
to  the  general  description  of  Schwitofsky,  who  spoke  with 
a  foreign  accent,  who  might  be  able  to  pass  himself  off  as 
an  electrician,  and  who  had  scars  on  his  hand.  Brown 
was  recalled  by  Counsel  for  the  Defense  immediately 
after  The  People  rested  their  case.  It  transpired  that 
at  the  time  of  the  arrest  Brown  had  taken  Schwitofsky 


22  TWENTY  YEAES  IN  STATE'S  PKISON 

to  Harold,  the  chauffeur,  for  the  latter 's  identification. 
Brown  was  being  cross-examined,  as  to  Avhy  Harold  ex- 
amined the  prisoner's  wrists,  when  the  Court  intervened 
and  stopped  the  cross-examination  as  being  improper. 
We  learn,  however,  that  the  police  were  looking  for  a 
man  who  had  the  scars  of  Harold's  finger  nail  scratches 
on  the  back  of  his  left  wrist,  but  this  point  was  not 
brought  out  clearly  by  either  the  Defense  or  the  Prosecu- 
tion before  the  jury. 

Now — as  the  reader  will  learn  from  "The  Prisoner's 
Story" — in  1908  while  in  the  Tombs  and  mourning  for 
the  loss  of  his  little  boy,  Schwitofsky,  in  his  despair,  had 
made  a  well-nigh  successful  attempt  at  suicide.  He  had 
taken  a  leaden  spoon  (such  as  are  handed  to  prisoners  in 
the  Tombs  with  their  food)  had  managed  to  turn  the 
handle  into  a  sharp-edged  weapon,  had  tried  to  cut  his 
jugular  vein,  and  had  opened  the  artery  on  the  inside  of 
his  left  wrist.  The  scars  will  probably  be  discernible  on 
the  inner  surface  of  Schwitof sky's  wrist  and  on  his  neck> 
to  the  end  of  his  life,  but  what  the  police  were,  or  should 
have  been,  looking  for  was  a  man  who  had  finger  nail 
scratches  on  the  back  of  his  left  wrist,  and  not  a  man  who 
had  the  scars  of  knife-cuts  on  the  under  surface  of  that 
wrist.  The  back  of  Schwitof  sky's  wrist  at  no  time 
showed  any  scars  of  the  scratches  visible  to  the  naked 
eye.  The  affidavit  of  Dr.  Julius  B.  Ransom,  Physician 
to  Clinton  Prison  (to  which  Schwitofsky  was  transferred 
from  Sing  Sing)  made  in  October,  1911,  or  nine  months 
after  the  occurrences  in  Dale's  house,  declares  that  the 
Doctor  has  carefully  examined  under  the  microscope  the 
left  wrist,  outer  aspect  with  the  palms  upward,  and  also 
the  back  of  the  wrist,  and  finds  that  the  outer  aspect  of 
the  left  wrist  with  palm  upwards,  shows  some  fine,  radi- 
ating linear  scars  which  were  evidently  made  by  a  thin, 
sharp  instrument  and  were  of  long  standing,  and  that 
these  scars,  in  his  judgment,  were  not  made  within  a 


TWENTY  YEAES  IN  STATE'S  PRISON  23 

year  previous  to  the  examination.  He  finds  absolutely 
no  indication  of  any  scars  on  the  back  of  either  ivrist  or 
arm  of  Schwitofsky.  He  also  declares  that  in  his  judg- 
ment, as  a  physician  of  long  standing,  if  the  skin  on  the 
back  of  the  wrist  of  Alfred  Schwitofsky  had  been  lacer- 
ated or  broken,  or  in  any  wise  injured,  there  would  be 
signs  noticeable  under  microscopic  examination,  and  that 
such  scars  would  remain  for  at  least  five  years.  Ten 
months  after  the  occurrences,  Dr.  Ransom  positively 
swears  that  there  were  no  signs  of  any  finger  nail 
scratches  on  the  back  of  the  left  wrist  of  Alfred  Schwitof- 
sky! 

When  first  arrested  Alfred  Schwitofsky  was  held  by 
Magistrate  O'Connor,  for  Special  Sessions,  on  a  charge 
of  "unlawful  entry."  He  was  afterwards  transferred 
to  General  Sessions  on  a  double  charge  of  burglary  in  the 
second  degree  and  felonious  assault  in  the  first.  Brown, 
when  under  examination  at  the  trial,  was  cross-exam- 
ined as  to  why  the  Magistrate  had  not  held  the  accused 
on  the  more  serious  charges,  to  which  he  somewhat  trucu- 
lently replied  that  he  had  arrested  defendant  on  the 
charge  of  burglary  and  not  of  unlawful  entry, — that  he 
did  not  tell  prisoner  that  the  charge  was  unlawful  entry. 
It  is  true  that  the  complaint  was  drawn  up  as  'unlawful 
entry,'  but  he,  Brown,  was  not  responsible  for  the  mis- 
takes of  the  Court.  In  spite  of  Brown's  contempt  for 
the  processes  in  the  police  courts  of  this  city  it  is  impossi- 
ble to  believe  that  the  evidence  given  before  the  magis- 
trate (of  which  the  writer  has  not  been  able  to  secure 
a  transcript)  was  of  such  a  nature  as  to  point  to  the 
commission  of  serious  offenses.  The  writer  feels  justi- 
fied in  concluding  that,  when  Brown  first  arrested  Schwit- 
ofsky, he  had  no  idea  of  the  statements  afterwards  made 
in  the  higher  court.  There  is  quite  ample  reason  for 
not  peremptorily  rejecting  Schwitof sky's  story  that  the 
complaints  against  him  were  increased  in  magnitude  as 


24  TWENTY  YEARS  IN  STATE'S  PRISON 

time  went  on,  without  his  having  any  idea  of  the  reasons 
for  this  cumulation  of  gravity. 

AWAITING  TRIAL. 

Schwitofsky  was  transferred  from  Special  Sessions 
to  General  Sessions  on  February  9,  1911,  and  the  new  in- 
dictment charged  him  with  the  commission  of  the  crimes 
charged,  as  a  second  offense.  As  will  be  seen  from  ' '  The 
Chaplain's  Story,"  the  prisoner  had  counsel  assigned  to 
him  by  the  Court  in  the  person  of  Mr.  William  D.  Bosler. 
Schwitofsky  states  that  he  told  his  story  fully  to  the 
Counsellor,  and  asked  him  to  secure  the  necessary  wit- 
nesses to  prove  his  alibi  on  the  19th  of  January,  but  he 
Bays  Bosler  replied,  "What,  do  you  think  I  am  going 
to  spend  my  time  and  money  on  your  case  when  there 
is  nothing  in  it  for  me!  I  shall  defend  you  as  an  officer 
of  the  Court  whenever  you  are  going  to  be  tried."  Mr. 
Bosler,  who  was  a  former  Deputy  Assistant  District  At- 
torney, is  a  young  gentleman  of  experience  and  ability, 
and  while  it  may  possibly  be  true  that  he  did  not  speak 
in  the  brusque  manner  indicated  by  Schwitof sky's  quo- 
tation, it  is  quite  within  the  bounds  of  probability  that 
he  did  say  that  he  had  no  means  of  procuring  the  required 
evidence,  and  that  it  would  be  impossible  for  him  to 
spend  any  considerable  amount  of  money  or  time  on  the 
defense,  for  the  conduct  of  which  he  was  not  receiving 
anything;  that  he  was  only  acting  as  an  assigned  officer 
of  the  Court,  and  without  pay. 

It  is  a  peculiar  thing,  and  well  worthy  of  remark  at  this 
point,  that  the  average  prisoner  in  the  Tombs  is  firmly 
convinced  that  all  assigned  lawyers  are  well  paid  for  the 
defense.  They  think  that  these  appointments  are  made 
by  the  State  and  generally  refer  to  an  assigned  counsel 
as  a  * '  State  Lawyer. ' '  The  truth  is  that  counsel  assigned 
for  the  defense  are  in  no  position,  unless  they  have  the 
benevolent  attitude  and  the  means  to  spare,  to  spend  any 


TWENTY  YEAES  IN  STATE'S  PRISON  25 

money  in  securing  evidence  for  the  clients  referred  to 
them  in  this  manner  by  the  courts.  Doubtless,  also, 
Schwitof  sky's  manner  was  as  nervous  and  excitable  when 
speaking  to  his  attorney  as  it  was  when  speaking  to  the 
chaplain  and  the  journalist  whose  stories  follow  on  a  later 
page. 

The  fact  that  one  of  the  first  striking  points  in  his 
story  was  that  he  had  quite  recently  been  released  from 
Mateawan  was  an  additional  reason  for  paying  no  great 
heed  to  his  protestations. 

Counsellor  Bosler  reported  to  Judge  Warren  W.  Fos- 
ter that,  in  his  opinion,  Schwitofsky  was  not  sane  and 
applied  for  a  Commission  in  Lunacy.  A  report  was  called 
for  by  Judge  Foster  from  the  prison  physician  and  Mr. 
Dan  E.  Kimball  of  the  Prison  Association,  and  these 
gentlemen  reported  that  they  saw  no  grounds  for  the  ap- 
pointment of  the  commission.  Judge  Foster,  therefore, 
denied  Bosler 's  request.  Later  on  the  case  of  Schwitof- 
sky was  referred  to  the  court  presided  over  by  Judge 
Thomas  C.  0 'Sullivan,  and  Mr.  Walter  H.  Carpenter 
was  assigned  by  Judge  0 'Sullivan  to  defend  the  prisoner, 
as  Mr.  Bosler  was  prevented  by  illness  from  attending 
to  the  case.  Counsellor  Carpenter  promptly  renewed  the 
application  for  the  appointment  of  a  Commission  in 
Lunacy.  This  time  the  application  was  granted  by  the 
late  Judge  0 'Sullivan.  The  Commission  held  its  inquiry 
and  reported  Schwitofsky  to  be  sane. 

The  case  finally  came  up  for  trial  on  June  1,  1911,  or 
exactly  four  months  from  the  date  of  the  arrest  of  Schwit- 
ofsky. Counsellor  Carpenter  was  assisted  by  Counsellor 
William  Gr.  Kier  for  the  defense.  Schwitofsky  had  been 
very  much  dissatisfied  with  Carpenter's  attitude,  and 
had  applied  to  the  Judge  for  the  appointment  of  other 
counsel.  He  complained  that  it  was  not  till  a  few  days 
before  the  trial  that  the  counsellor  called  on  him,  and  on 
Schwitof  sky's  objecting  to  what  he  claims  was  the  indif- 


26  TWENTY  YEAES  IN  STATE'S  PRISON 

ference  displayed  by  Carpenter,  Counsellor  Kier  entered 
in  the  case.  He  says  that  Kier  paid  him  one  brief  quar- 
ter-hour visit  on  the  first  occasion,  and  then  made  an 
appointment  to  see  him  on  the  day  before  the  trial.  Kier, 
however,  did  not  keep  this  appointment  and  went  to  trial 
without  any  further  consultation  with  his  client.  The 
truth  seems  to  be  that  everybody  in  the  Court  by  this 
time  appears  to  have  been  convinced  that  while  Schwitof- 
sky  was  not  legally  insane,  he  was  nevertheless  so  un- 
reliable that  no  attention  need  be  paid  to  his  protesta- 
tions, and  counsel  seem  to  have  decided  to  content  them- 
selves with  fighting  the  case  as  presented  by  the  People. 

THE  INDICTMENT. 

On  the  9th  of  February,  1911,  the  Grand  Jury  of  the 
County  of  New  York  indicted  Alfred  v.  Schwitofsky, 
otherwise  called  Alfred  Gerber,  for  the  crime  of  Burglary 
in  the  Second  Degree  as  a  Second  Offense,  reciting : — 

"That  on  the  llth  of  July,  1910,  the  said  Alfred  Schwit- 
ofsky was  convicted  before  Judge  Edward  Swann  of  the 
Court  of  General  Sessions,  in  the  County  of  New  (York, 
of  the  Felony  of  Burglary  in  the  Third  Degree,  said  Bur- 
glary being  constituted  by  his  entering  with  force  and 
arms  the  dwelling-house  of  Elma  J.  Ellsworth  on  the 
19th  of  February,  1908,  and  did  burglariously  steal,  take 
and  carry  away  chattels  and  personal  property  of  the  said 
Elma  J.  Ellsworth ;  that  upon  the  conviction  of  the  afore- 
said, the  sentence  was  suspended; 

"And  that  the  said  Alfred  V.  Schwitofsky  did  on  the 
19th  of  January,  1911,  obtain  an  entrance  to  the  dwelling- 
house  of  Theodore  B.  Dale  by  fraudulently  pretending 
and  representing  that  he  was  a  servant  and  agent  of  the 
New  York  Telephone  Company,  and  by  this  fraudulent 
pretence  did  feloniously  and  burglariously  enter  the 
dwelling-house  of  Theodore  B.  Dale,  there  being  human 


TWENTY  YEAKS  IN  STATE'S  PRISON  27 

beings  within  the  same,  and  with  intent  to  commit  the 
crime  of  feloniously  and  burglariously  stealing,  taking 
and  carrying  away  the  goods,  chattels  and  personal  prop- 
erty of  the  said  Theodore  B.  Dale. ' ' 

And  the  Grand  Jury  aforesaid  did  also  further  indict 
the  said  accused  of  the  crime  of  Assault  in  the  First  De- 
gree, as  a  Second  Offense,  reciting: — 

* '  That  the  accused  having  been  formerly  guilty  of  the 
felony  of  Burglary  in  the  Third  Degree  first  mentioned, 
did  on  the  19th  of  January,  1911,  enter  the  dwelling- 
house  of  Theodore  B.  Dale  situated  in  the  Borough  and 
County  aforesaid,  by  means  of  the  artifice  used  for  that 
purpose  as  described  in  the  first  count,  with  the  object 
of  burglariously  stealing  and  carrying  away. 

"And  having  so  entered  said  building  with  force  and 
arms,  feloniously  did  make  an  assault  to,  at  and  against 
one  Anna  Hart,  by  holding  in  his  right  hand  a  certain 
pistol  loaded  and  charged  with  gun-powder  and  one  lead- 
en bullet,  which  he  did  then  and  there  point,  aim  and 
present  with  the  intent  to  wilfully  and  feloniously  kill  the 
said  Anna  Hart. 

* '  To  all  of  which  A.  H.  Eppstein,  Foreman,  did  certify 
that  a  "true  bill  had  been  found." 


THE  TKIAL. 

The  reader  will  find  in  a  later  portion  of  this  booklet 
all  the  evidence  presented  by  the  People  edited  in  narra- 
tive form,  the  writer  considering  that  the  average  reader 
will  find  it  easier  to  peruse  in  this  form  than  to  follow  the 
tedious  method  of  question  and  answer  with  which  the 
evidence  is,  according  to  the  custom  of  our  courts, 
recorded.  The  reader  will  observe  at  certain  places, 
asterisks  marking  the  evidence.  Whenever  such  aster- 
isks occur  they  record  the  taking  of  an  objection  by  coun- 
sel for  the  defense. 


28  TWENTY  YEARS  IN  STATE'S  PRISON 

The  witnesses  for  The  People  were  Nettie  Palma,  Nora 
Murphy  and  Anna  Hart,  all  in  the  employ  of  Theodore  B. 
Dale,  and  the  complaining  witness,  Theodore  B.  Dale  him- 
self;  together  with  Officer  William  W.  Duggan,  who  was 
called  to  testify  to  a  previous  conviction  and  suspension 
of  sentence  before  Judge  Swann;  Edward  Denahm,  who 
was  called  to  testify  that  the  accused  had  never  been  in 
the  employ  of  the  Telephone  Company;  and  Detective 
William  Brown,  who  testified  as  to  the  arrest  of  Schwit- 
ofsky.  For  the  defense  the  accused  himself  was  the  sole 
witness. 

The  reader  is  asked  to  read  Schwitof sky's  evidence 
with  the  utmost  care.  He  will  find  it  extremely  confused. 
According  to  his  statement  already  repeated,  neither  of 
the  counsel  for  the  defense  had  taken  the  slightest  notice 
of  his  own  story.  An  ill-educated  foreigner,  fully  con- 
scious of  the  gravity  of  the  charge  against  him,  unable 
to  secure  credence  from  anybody  officially  connected  with 
the  case  to  his  loud  and  almost  hysterical  declarations  of 
his  innocence ;  feeling  himself  entrapped  within  the  dan- 
gerous machinery  of  the  law;  in  no  position  to  know  ex- 
actly what  was  to  be  charged  against  him  and  what  evi- 
dence was  to  be  presented, — there  is  little  reason  for 
wondering  that  many  of  his  statements  were  incoherent, 
irrelevant  and  confused.  The  Court  itself  appears  not  to 
have  been  well  disposed  towards  the  prisoner,  for  Judge 
0 'Sullivan  had  been  harassed  by  the  receipt  of  many 
long-winded  letters  from  the  accused,  had  been  annoyed 
by  the  accused's  constant,  and,  probably  to  his  mind, 
unreasonable  objections  to  the  counsel  assigned,  and  had 
undergone  the  experience  of  receiving  communications 
from  benevolent  workers  which  might  have  the  tendency 
to  set  up  in  his  mind  an  undue  prejudice  in  the  case  in 
favor  of  the  prisoner. 

One  other  point  with  respect  to  the  late  Judge  0  'Sulli- 
van must  be  noted  for  the  benefit  of  those  who  did  not 


TWENTY  YEAKS  IN  STATE'S  PKISON  29 

have  a  personal  acquaintance  with  the  Judge.  The  writer 
refers  to  this  point  with  the  greatest  possible  reluctance, 
and  is  only  induced  to  do  it  by  a  feeling  of  necessity, 
and  the  obligation  to  omit  nothing  which  can  give  the 
reader  a  clear  view  of  the  whole  conditions  of  the  trial. 
The  writer  as  Chaplain  had  often  met  Judge  0  'Sullivan 
and  conversed  with  him  with  respect  to  a  number  of  other 
cases  of  Jewish  defendants.  Judge  0 'Sullivan  always 
displayed  himself  as  a  fair-minded  and  kindly  man,  pre- 
pared to  take  unusual  pains  to  reconcile  husbands  and 
wives  in  cases  of  abandonment,  and  to  investigate  thor- 
oughly any  doubtful  points  in  cases  where  the  accused 
had  pleaded  guilty,  and  where  a  more  intimate  knowl- 
edge of  the  facts  than  that  displayed  in  the  indictments 
might  lead  the  judge  to  lenient  action.  But  it  must 
needs  be  said  that  the  late  Judge  0  'Sullivan  had  physical 
and  temperamental  weaknesses  which  very  probably 
helped  in  the  miscarriage  of  justice  to  which  public  atten- 
tion is  now  called.  Judge  0 'Sullivan  was  very  hard  of 
hearing;  it  is  alleged  that  he  was  quite  deaf  in  one  ear. 
The  Judge  is  believed  to  have  been  quite  blind  of  one 
eye.  In  early  youth  an  arm  had  been  torn  out  of  the 
shoulder  socket.  These  physical  disabilities  (which  would 
have  prevented  Judge  0 'Sullivan  from  serving  on  a 
jury)  were  minimized  by  the  judge 's  known  determination 
to  let  no  action  or  statement  pass  in  his  court  without  his 
fullest  cognizance.,  Nevertheless,  many  a  thing  must 
have  been  said  and  done  in  the  court  of  which  His  Honor, 
with  all  his  watchfulness  and  care,  could  not  have  been 
cognizant.  It  is  known  that  when  Judge  0  'Sullivan  first 
took  his  seat  on  the  bench  objection  was  made  by  officers 
practising  before  him  because  of  his  tendency  to  extreme 
irascibility. 

If  the  reader  will  now  picture  to  himself  the  position 
of  Alfred  Schwitofsky  and  remember  how  much  in  this 
case,  above  all  other  cases,  depended  on  the  alertness, 


30  TWENTY  YEAES  IN  STATE'S  PRISON 

mental  and  physical,  of  the  judge,  he  will  realize  how  the 
unhappy  accused  appears  to  have  had  the  very  ' '  stars  in 
their  courses"  fighting  against  him.  The  examination 
and  cross-examination  by  his  own  counsel  and  by  the 
Deputy  District  Attorney  were  conducted  in  an  extremely 
patronizing  and  significant  manner.  The  methods  of  ad- 
dressing him  by  his  own  counsel  must  necessarily  have 
conveyed  to  the  jury  the  impression  that  the  examiner  had 
no  faith  in  the  sanity,  and  consequently  in  the  truthful- 
ness, of  the  accused.  To  put  it  briefly,  owing  to  the  many 
peculiar  conditions  here  described,  any  one  who  had  the 
slightest  personal  interest  in  Schwitofsky  or  any  faith  in 
the  possibility  of  his  innocence  must  have  felt  a  sense 
of  extreme  dissatisfaction  with  the  conduct  of  the  trial. 


THE  SENTENCE. 

The  jury  returned  a  verdict  of  '  *  Guilty, ' '  and  Schwitof- 
sky was  sentenced  on  the  5th  of  June,  1911,  four  days 
after  the  trial,  to  twenty  years  imprisonment.  When  sen- 
tencing the  accused  Judge  0 'Sullivan  stated  in  unmis- 
takable terms  his  opinion  that  the  accused  belonged  to 
the  class  of  men  who  should  be  kept  in  jail  for  life. 

About  twelve  days  elapsed  before  the  Judge  signed  the 
commitment  papers  which  would  authorize  the  transfer  of 
the  accused  from  the  Tombs  to  Sing  Sing  Prison.  Dur- 
ing this  period  the  prisoner  communicated  with  the  writer 
of  an  article  in  the  New  York  Herald  which  described  con- 
ditions in  the  Tombs.  In  response  to  Schwitof sky's  writ- 
ten request,  ME.  FRANK  MARSHALL  WHITE,  a  very  promi- 
nent journalist  of  New  York,  visited  him.  Mr.  White, 
struck  by  the  story  told  by  Schwitofsky,  entered  upon  an 
independent  examination  of  the  whole  affair.  He  called 
after  the  lapse  of  some  time  on  Judge  0 'Sullivan.  Here  is 
Mr.  White's  account  of  his  visit  to  the  judge,  as  given 
in  an  article  on  the  case  published  on  January  13,  1912: 


TWENTY  YEARS  IN  STATE'S  PRISON  31 

"All  things  considered,  I  felt  justified  in  laying  before 
Judge  0  'Sullivan,  the  information  I  had  gathered  with  re- 
gard to  Schwitofsky.  I  found  that  the  Judge  was  cogni- 
zant of  all  the  circumstances,  if  not  of  their  bearing  on 
each  other.  'Schwitofsky  was  found  guilty  after  a  fair 
and  impartial  trial, '  0  'Sullivan  told  me,  '  and  a  sentence 
of  twenty  years  is  the  lightest  I  could  impose  on  him.' 

It  is  almost  inconceivable  how  such  a  statement  could 
have  been  made  by  the  Judge,  and  had  the  writer  any  less 
reliable  authority  than  that  of  Mr.  White  he  would  feel 
disposed  to  take  the  liberty  of  questioning  the  truth  of  the 
quotation.  But  the  writer  knows  Mr.  White  so  well  that 
any  doubt  of  his  honesty  or  carefulness  of  statement  be- 
comes an  absurdity.  When  the  late  Judge  0 'Sullivan 
made  that  statement  to  Mr.  White  he  stated  what  was 
only  true  in  a  tricky  sense,  but  what,  in  fact,  was  untrue. 
The  sentence  of  twenty  years  on  Schwitofsky  was  not  the 
lowest  sentence  the  Judge  could  have  imposed,  but  was 
the  maximum  sentence,  that  is,  double  the  lowest  sentence 
imposable  in  the  case.  It  is  not  an  uncommon  thing  for 
juries  to  convict  accused  on  two  or  three  counts  in  an  in- 
dictment, all  the  counts  rising  out  of  the  one  crime.  It  is 
an  uncommon  thing  for  a  judge  to  sentence  on  each.  The 
usual  and  humane  practice,  when  the  counts  in  an  indict- 
ment all  arise  out  of  the  same  offense,  is  to  sentence  the 
accused  on  the  more  serious  count  and  ignore,  for  the  mo- 
ment, the  other  counts,  or,  if  the  other  counts  are  revived 
later  on,  to  suspend  sentence  on  them.  The  lowest  sen- 
tence, according  to  the  law,  which  the  Judge  could  have 
imposed  on  Schwitofsky  was  ten  years,  and  not  twenty. 

THE  APPEAL. 

Those  who  had  doubts  of  Schwitof sky's  guilt  were 
startled,  in  some  instances  horrified,  at  the  severity  of 
the  sentence,  and  although  they  had  to  oppose  the  whole 


32  TWENTY  YEAKS  IN  STATE'S  PRISON 

stately  and  powerful  machinery  of  the  law  in  this  Coun- 
ty, and  were  men  without  any  influence  except  that  which 
is  given  by  the  desire  to  perform  a  duty,  they  set  them- 
selves resolutely  and  quietly  to  fight  the  case.  It  was  at 
this  point  that  Mr.  White,  whose  story  is  published  here- 
after, did  such  splendid  yeoman  service  in  the  cause  of 
justice.  He  set  himself  the  task  of  hunting  down  and  in- 
terviewing every  man  who  could  throw  any  light  or  give 
any  information  with  respect  to  the  crime  charged  by 
Dale.  Not  content  with  that,  he  investigated  the  facts 
connected  with  every  other  charge  made  in  this  county 
and  state  against  Schwitofsky.  Mr.  White  did  not  con- 
tent himself  with  merely  interviewing  people — it  was  he 
who  secured  the  affidavits  published  on  another  page  from 
the  prisoner,  from  Leo  Gelsky,  Frank  Harold,  Edward  J. 
Cousin  and  Dr.  Julius  B.  Ransom. 

When  the  case  for  Schwitofsky  was  considered  as  com- 
plete as  the  limited  means  at  the  command  of  Schwitof- 
sky's  friends  permitted,  Mr.  White  called  with  all  these 
proofs  on  Deputy  Assistant  District  Attorney  Eobert  C. 
McCormick  who  tried  the  case,  and  placed  before  him  the 
results  of  his  investigation,  showing  him  the  affidavits  he 
had  secured.  Mr.  McCormick,  Mr.  White  reports,  very 
nobly  and  generously  said  that,  in  view  of  this  evidence, 
the  District  Attorney's  Office  would  not  oppose  the  pro- 
posed application  for  a  new  trial,  on  the  grounds  of  newly 
discovered  evidence.  "It  is  the  duty,"  he  said,  magnani- 
mously, "of  this  Office  to  Help  to  Save  the  Innocent,  as 
much  as  it  is  to  Prosecute  and  Punish  the  Guilty."  Mr. 
White  was  greatly  encouraged  by  this  noble  attitude  on 
the  part  of  the  representative  of  the  District  Attorney, 
and  when  Counsellor  K.  Henry  Rosenberg  very  kindly 
undertook  to  prepare,  without  charge,  all  the  necessary 
papers  and  argue  the  appeal  before  Judge  0 'Sullivan,  he 
went  into  court  cheered  by  the  feeling  that  his  task  would 
be  light,  as  his  application  would  receive  the  support  of 


TWENTY  YEAKS  IX  STATE'S  PKISON  33 

the  District  Attorney.  Imagine  then,  the  amazement  and 
consternation  of  the  friends  of  Schwitofsky  when  Mr. 
McCormick  arose  and  argued  vehemently  against  the 
granting  of  the  appeal.  So  intent  was  Mr.  McCormick 
on  preventing  the  court  from  acceding  to  the  application 
made  on  behalf  of  Schwitofsky,  that  he  allowed  his 
enthusiasm  to  lead  him  into  very  considerably  over- 
stating the  number  of  convictions  recorded  against 
Schwitofsky. 

The  Appeal  having  been  argued  by  counsel  for  the  pris- 
oner and  opposed  by  the  District  Attorney's  office,  the 
Court  accepted  the  affidavits  and  announced  that  it  would 
take  time  for  consideration  of  the  application.  Some 
seven  weeks  intervened  between  the  application  and  the 
decision  which  denied  the  Appeal.  During  these  seven 
weeks  the  writer  had  an  interesting  conversation  with  Mr. 
McCormick,  who  told  him  that  the  judge  had  referred  all 
the  affidavits  in  the  case  to  the  District  Attorney's  office 
for  investigation  and  report.  When  the  writer  asked  Mr. 
McCormick  how,  in  the  face  of  the  conclusive  nature  of 
these  affidavits,  he  could  oppose  the  application,  his  reply 
was  an  invitation  to  the  writer  to  come  to  his  office  and 
see  all  the  evidence  the  District  Attorney  had  secured. 
The  writer's  reply  was  that  he  had  long  before  pro- 
cured a  transcript  of  all  the  evidence  and  was  intimately 
acquainted  with  every  word  uttered  at  the  trial.  "Our 
identification,"  said  Mr.  McCormick,  "is  so  perfect,  that 
nothing  can  shake  our  case.  We  ground  our  attitude  on 
the  unassailable  completeness  of  the  identification. ' '  The 
writer  replied,  "Well,  let  us  grant,  for  the  moment,  that 
Schwitofsky  was  the  man  who  entered  Dale's  house  on 
the  morning  of  the  19th  of  January,  1911,  and  that  the 
conviction  on  the  count  of  burglariously  entering  can  be 
upheld.  But  how  do  you  account  for  the  fact  that  the 
conviction  for  felonious  assault  in  the  first  degree  cannot 
stand  for  a  moment  as  it  has  been  shown  that  the  pistol, 


34  TWENTY  YEARS  IN  STATE'S  PRISON 

which  the  man  who  entered  Dale's  house  flourished,  was 
unloaded!"  Mr.  McCormick  looked  surprised  at  this 
statement  and  said,  "Is  that  so?" 

It  is  possible  that  Mr.  McCormick  will  have  no  recol- 
lection of  this  fact,  and  will  deny  that  the  conversation 
just  described  took  place,  or  that  it  took  the  form  indi- 
cated, because,  when  on  a  later  occasion,  again  discussing 
the  case,  the  writer  asked  Mr.  McCormick  how  he 
accounted  for  the  fact  that  when  Mr.  White  first  called 
on  him  he  promised  that  the  District  Attorney  would  not 
oppose  the  application  for  a  new  trial,  and  how  he  could 
reconcile  that  promise  with  the  fact  that  the  District  At- 
torney did  most  strenuously  oppose  the  application,  Mr. 
McCormick  replied,  "Why,  White  lied  to  me.  I  did  not 
read  the  affidavits,  but  I  took  his  statement  of  what  they 
contained  for  granted."  It  was  intimated  to  Mr.  Mc- 
Cormick that  Mr.  White  does  not  lie,  and  since  the  memor- 
able occasion  on  which  Mr.  McCormick  thus  defended 
himself,  all  personal  intercourse  with  that  high-minded 
gentleman  has  been  avoided  by  the  writer.  Mr.  White 
declares  that  if  Mr.  McCormick  did  not  read  the  affidavits 
he  made  an  admirable  pretense  at  doing  so,  for  he  took 
each  affidavit  into  his  own  hands,  appeared  to  read  each 
page  carefully,  with  all  the  manner  of  a  man  who  was 
absorbing  the  contents,  and  it  was  only  after  he  returned 
the  affidavits  to  Mr.  White  that  he  made  the  noble  and 
virtuous  declaration  which  so  encouraged  the  defenders 
of  Schwitofsky. 

THE  APPEAL  DEFIED. 

In  denying  the  Appeal,  Judge  0 'Sullivan's  'Opinion' 
recounts  the  story  of  the  occurrences  at  Dale's  house  on 
the  morning  of  January  19,  1911,  and  the  testimony  of 
various  witnesses  which  showed  that  the  defendant  "tak- 
ing a  loaded  revolver  from  his  pocket  said,  'You  won't 
let  me  out;  you  won't!  I'll  shoot  you  if  you  don't  let  me 


TWENTY  YEARS  IN  STATE'S  PRISON  35 

out, '  ' '  and  that  he  threatened  several  persons  in  this  way. 
The  story  of  the  flight  of  the  man  and  his  being  held  by 
the  chauffeur,  etc.,  is  repeated.  The  learned  Judge  goes 
on  to  say :  "The  Defendant's  motion  is  based  on  alleged 
newly-discovered  evidence  as  to  identity,  on  the  theory 
that  certain  scars  on  his  wrist  were  relied  upon  to  a  ma- 
terial extent  to  prove  his  identity  as  the  actual  offender." 
The  Judge  then  dwells  on  the  fact  that  there  were  four 
witnesses,  Dale  himself  and  three  of  his  employees,  who 
swore  to  the  identity  of  the  Defendant.  All  four  declared 
that  they  recognized  the  defendant  and  were  positive  in 
their  testimony  as  to  the  identity  of  the  defendant.  The 
Judge  then  repeats  Schwitof sky's  statements  as  to  his 
arrest,  and  goes  on  to  say: 

* '  On  re-cross-examination  the  Attorney  for  the  prosecu- 
tion asked  the  defendant,  'Now,  the  reason  the  chauffeur 
wanted  to  look  at  your  wrist  was  that  at  the  time  he 
stopped  you  your  wrist  was  cut  by  his  nail,  wasn't  it?' 
To  which  the  Defendant  answered,  'No.'  Thereupon,  the 
District  Attorney  asked,  'Well,  what  did  he  want  to  look 
at  your  wrist  for?',  and  the  Defendant  answered,  'He 
wanted  to  look  at  my  wrist  and  examined  my  wrist,  and 
then  he  shook  his  head. '  ' ' 

The  Judge  referred  to  the  fact  that  the  foreman  of  the 
jury  questioned  the  defendant  about  the  scar  on  his  wrist 
and  asked  him  how  he  came  by  it  and  that  defendant 
answered  that  he  inflicted  the  injury  upon  himself  in  the 
year  1908.  "After  the  closing  arguments  had  been 
made, ' '  said  the  Judge,  ' '  and  while  the  Court  was  charg- 
ing the  Jury,  he  was  interrupted  by  the  Defendant's 
Counsel,  who  stated  that  the  Defendant  desired  to  make 
a  statement  to  the  Jury  regarding  the  mark  upon  his 
arm."  This  request  was  denied.  The  Judge  continues, 
"Three  of  the  affiants,  whose  affidavits  are  part  of  the 
moving  papers,  were  accessible  at  the  time  of  the  trial  and 
their  testimony  could  have  been  procured."  "I  do  not 


36  TWENTY  YEARS  IN  STATE'S  PRISON 

believe,"  continued  the  Judge,  "that  any  additional  testi- 
mony by  them  would  have  changed  the  verdict  of  the 
Jury,  nor  would  testimony  of  the  microscopic  examina- 
tion of  the  scars  three  years  after  they  were  made  have 
that  effect."  The  Court  found  nothing  to  justify  the 
granting  of  the  motion  for  a  new  trial,  and  therefore 
denied  it  on  the  23rd  of  February,  1912. 

The  learned  Judge,  the  reader  sees,  like  Deputy  Assist- 
ant District  Attorney  McCormick,  based  his  opinion  of 
the  justice  of  the  sentence  on  the  identification  of  Schwit- 
of  sky  at  the  trial. 

THE  IDENTIFICATION. 

The  identification  of  accused  persons  generally  is  one 
of  the  most  perplexing  of  the  questions  which  practi- 
tioners of  law  in  the  Criminal  Courts  have  to  encounter. 
Many  scores  of  cases  throughout  the  world  are  recorded, 
in  which  there  has  been  the  most  positive  identification 
of  accused  by  numbers  of  witnesses,  all  honest  and  well- 
meaning,  and  in  which  later  developments  have  shown 
that  the  identification  was  mistaken.  Now,  it  would  be 
well  to  analyze  the  identification  in  this  case. 

Nettie  Palma  states  that  she  opened  the  front  door  of 
the  house  in  answer  to  a  ring  of  the  bell ;  that  she  saw  a 
man  who  said  he  was  the  telephone  man;  that  she  ad- 
mitted this  man  and  then  went  upstairs ;  that  ABOUT  TEN 
MINUTES  LATER  she  was  called  downstairs  again  and  there 
saw  the  man  threatening  to  shoot  first  Mr.  Dale  and 
afterwards  Anna  Hart.  She  further  swore  that  she  saw 
the  man  run  down  the  length  of  five  houses  towards  Fifth 
Avenue  on  the  opposite  side  of  the  street,  and  that  then 
he  ran  back  towards  Sixth  Avenue ;  that  Anna  Hart  and 
Mr.  Dale  were  only  a  few  feet  behind  him ;  that  Mr.  Dale 
was  shouting  for  help ;  that  nobody  stopped  the  fugitive, 
who  turned  to  cross  the  street  again  and,  in  doing  so,, 


37 

dropped  the  revolver  and  then  ran  towards  Sixth  Avenue 
and  jumped  on  a  car.  There  was  another  man  with  him. 
The  next  time  she  saw  the  defendant  was  up  at  57th 
Street  in  the  Court.  Under  cross-examination  she  per- 
sisted that  she  saw  defendant  drop  the  revolver,  and  that 
a  detective  picked  it  up.  She  said  that  she  had  not  prob- 
ably talked  to  him  more  than  a  second  or  two  when  she 
admitted  him.  Asked  whether  she  had  any  doubt  as  to 
whether  defendant  was  the  man  she  saw  at  the  house,  she 
said,  "No,"  that  she  was  sure  that  that  was  the  man. 
She  only  saw  the  man  for  a  few  seconds  in  the  first  in- 
stance, and  then  saw  him  again  under  conditions  which, 
to  a  young  girl  like  her,  were  so  exciting  and  bewildering 
that  she  had  no  clear  recollection  of  what  actually 
occurred,  for  as  the  reader  knows,  the  fugitive  did  not 
drop  the  revolver,  nor  was  he  allowed  to  make  his  escape, 
to  the  car  on  Sixth  Avenue,  unimpeded. 

This  witness  unquestionably  intended  to  tell  the  truth, 
but  what  she  actually  saw  (if  she  really  was  in  a  condi- 
tion to  observe  anything  at  all,  and  was  not  in  such  a 
state  of  fright  and  consternation  that  she  was  unable  to 
remember  clearly  what  took  place)  was  the  man  being 
stopped  by  the  chauffeurs,  the  struggle  between  the  fugi- 
tive and  Harold,  the  gathering  of  a  big  crowd  and  the  re- 
lease of  the  man  after  the  occurrence  of  quite  an  exciting 
scene,  all  of  which  seems  to  have  left  no  impression  what- 
ever on  her  memory.  The  next  time  she  saw  the  man  was 
fifteen  days  later  in  the  Police  Court. 

The  identification  by  Dale  may  be  at  once  dismissed 
from  the  reader's  attention  in  the  light  of  the  develop- 
ments two  years  later,  which,  of  course,  were  unknown 
to  the  Court  at  the  time  that  the  Appeal  was  denied. 
Nevertheless,  the  Court  had  before  it,  not  in  this  case 
truly,  but  in  another  case  (and  its  attention  had  been 
directed  to  that  important  point  by  the  Jewish  Chap- 
lain) clear  and  unmistakable  evidence  that  Dale  had  been 


38  TWENTY  YEAES  IN  STATE'S  PRISON 

charged  with  the  practice  of  a  hideous  offense  against 
morality,  and  that  there  was  a  strong  probability  that  the 
two  cases  were  intimately  connected.  The  writer  is  not 
prepared  to  say  how  far  the  Judge  would  have  been  justi- 
fied by  the  practice  of  the  Courts  in  insisting  on  the  con- 
nection of  the  two  cases.  This  might  have  been  legally 
improper — although  there  may  be  room  to  doubt  that. 
But  surely  humanity,  justice  and  common-sense  dictated 
that  the  point  should  at  least  have  been  investigated  dur- 
ing this  trial !  Had  that  point  been  brought  out,  does  any 
thinking  reader  imagine  that  the  Jury  would  have  at- 
tached any  great  weight  to  Dale's  testimony?  Dale's 
evidence  should  then  unquestionably  be  dismissed  as  un- 
worthy of  credence. 

The  judge  had  dealt  with  the  charge  against-  Leo  Gel- 
sky.  He  must  have  been  aware  of  the  circumstance  of 
the  alleged  connection  of  Gelsky's  case  with  that  of 
Schwitofsky.  Why  was  this  point  not  investigated? 

The  next  witness  was  Anna  Hart,  the  colored  maid, 
housekeeper  or  cook.  Her  evidence  was  simply  that  she 
went  from  the  breakfast  room  where  she  was  clearing 
away  the  table  into  the  middle  parlor,  and  there  she  was 
asked  to  hold  the  front  door  and  prevent  a  man  from 
going  out.  She  declared  that  he  pulled  a  revolver  out 
of  his  pocket,  "drew  it  in  her  face  twice,"  and  threat- 
ened to  shoot  her.  The  period  elapsing  for  this  occur- 
rence she  places  at  two  minutes.  She  declares  that  he 
pointed  the  revolver  at  her  twice  and  then  at  Dale.  It 
is  not  of  much  importance  but  the  other  evidence  is  that 
the  revolver  was  pointed  first  at  Dale  and  then  at  her. 
Quetsioned  as  to  the  identification,  she  said  that  the  man 
she  saw  had  no  particular  marks  which  she  noticed,  but 
that  he  did  not  have  at  that  time  the  mustache  which 
Schwitofsky  wore  at  the  trial.  She  said  positively,  "I 
knows  him,  anyhow.  I  knows  that's  the  man  that  pointed 
the  gun  in  my  face ;  I  knows  that. ' ' 


TWENTY  YEAES  IX  STATE'S  PRISON  39 

The  writer  would  be  very  sorry  to  do  any  injustice  to 
Anna  Hart,  but  if  she  had  been  any  length  of  time  in 
Dale's  employ  she  must  have  had  some  suspicion,  or 
knowledge,  as  to  his  habits ;  and,  with  due  respect  to  the 
lady,  the  fact  that  after  such  knowledge  or  suspicion  she 
could  remain  in  his  employ  might  tend  to  weaken  the 
value  of  her  testimony,  in  the  minds  of,  perhaps  over- 
nice,  people. 

The  last  witness  who  positively  identified  the  man  was 
Nora  Murphy.  She  is  a  young  girl  who  was  employed  in 
Dale's  dress-making  establishment,  and  there  is  no  de- 
sire to  impeach  in  the  slightest  degree,  her  character  or 
truthfulness.  What  she  said  she  saw  and  believed  was 
really  what  she  thought  she  saw  and  really  did  believe. 
But  she  was  upstairs  when  the  pretended  telephone  man 
came  in,  and  was  called  downstairs  by  Dale,  who  directed 
her  to  go  to  the  telephone  booth  and  see  if  they  had  sent 
a  man  to  fix  the  'phone.  She  'stepped  into  the  booth,' 
'phoned,  and  got  her  reply  to  the  effect  that  they  had 
not  sent  a  man.  After  she  left  the  telephone  booth  she 
did  not  see  anything  more.  Everybody  had  left  the  house 
except  Nettie  Palma,  and  she  was  standing  in  the  hall. 
That  was  all  she  knew  about  it.  "But,"  she  went  on  to 
say,  "  he, "  the  defendant, ' '  'phoned  the  day  before. ' '  To 
the  question  as  to  how  she  knew  he  was  the  same  man  she 
said  she  recognized  the  voice.  The  man  over  the  'phone 
asked  if  that  were  Mr.  Dale's  house,  and  said  they  were 
going  to  put  a  telephone  in  the  house  next  door,  etc. 

Now  follows  the  most  extraordinary  bit  of  cross-exam- 
ination by  defendant's  counsel,  which  adorns  the  records 
of  our  criminal  courts.  The  reader  will  note  that  there  is 
never  the  slightest  hint  that  she  heard  the  accused  utter 
a  sound  on  the  morning  of  the  19th.  According  to  her 
own  story  she  had  not  heard  him  say  a  word.  Mr.  Kier 
asked,  "And  this  conversation  over  the  'phone  the  day 
before  was  with  somebody  you  believed  was  the  defendant 


40  TWENTY  YEARS  IN  STATE'S  PRISON 

because  it  sounded  like  his  voice."  Her  answer  was, 
"Yes,  he  spoke  broken  English."  The  next  question 
was,  "And  then  you  believe  it  was  this  defendant  because 
he  spoke  broken  English.  Do  you?"  Her  answer  was, 
"Yes  sir." 

Here  the  reader  will  see  that  the  Defendant 's  own  coun- 
sel is  so  heedless  as  to  create,  in  the  minds  of  the  Jury, 
an  impression  that  she  heard  the  man  speak  in  Dale's 
house,  which  her  own  previous  testimony  shows  not  to 
have  been  the  case.  Then  this  clever  cross-examiner 
moved  to  have  the  testimony  stricken  out.  Upon  which 
the  Court  asked  the  witness,  "In  addition  to  the  broken 
English,  you  say  that  you  recognized  the  sound  of  his 
voice. ' '  Her  reply  was, '  *  Yes  sir. ' '  Seeing  that  the  wit- 
ness had  never  referred  to  the  quality  or  sound  of  the 
prisoner's  voice,  this  may  be  described  as  a  very  'leading 
question. '  The  Court  denied  Mr.  Kier  's  motion  to  strike 
out  the  testimony. 

There  was  sharp  discussion  between  Counsel  on  both 
sides  and  the  Court,  in  the  course  of  which  Mr.  Kier 
moved  for  a  mistrial.  This  was  denied,  but  the  Court 
directed  that  the  conversation  over  the  telephone  be 
stricken  out,  and  that  the  jury  disregard  it  entirely.  It 
will  be  seen,  however,  that  the  absolutely  false  impres- 
sion that  Miss  Murphy  recognized  Schwitofsky  because 
she  had  heard  him  speak  on  the  morning  of  the  19th  and 
recognized  his  voice  as  that  of  the  man  who  spoke  on  the 
afternoon  of  the  18th,  was  left  undisturbed  on  the  minds 
of  the  jury. 

The  truth  of  the  matter  may  be  that  these  two  young 
ladies  positively  swore  to  Schwitofsky  as  being  the  man 
whom  they  saw  on  the  morning  of  the  19th,  whereas  in 
reality  they — quite  unconscious  of  the  distinction  between 
the  facts — recognized  him  as  the  man  they  saw  in  the  po- 
lice court  fifteen  days  after  the  occurrences  in  Dale's 
house. 


TWENTY  YEARS  IN  STATE'S  PRISON  41 

Brown,  the  arresting  officer,  swore  that  on  the  morning 
of  the  trial  in  the  police  court  before  Magistrate  O'Con- 
nor, the  prisoner  was  placed  on  one  of  the  benches  in  the 
court-room  and  the  three  female  witnesses  each  went 
across  to  where  he  sat  in  the  audience,  placed  a  hand  on 
his  shoulder  and  said,  " That's  the  man."  He  also 
swore  that  the  accused  was  brought  direct  from  the 
prison  and  placed  in  the  audience.  At  that  time  the  wit- 
nesses were  in  an  inner  room  called  the  "Complaint 
Boom."  They  could  not  see  him  from  that  room. 

On  the  other  hand,  Alfred  Schwitofsky  swore  to  the 
following  effect: 

"I  was  taken  to  the  57th  Street  Court  and  placed  in  the 
pen.  In  a  short  while  a  young  fellow  came  downstairs 
and  was  brought  down  by  the  same  two  officers,  and  one 
of  them  shoved  him  on  the  side  with  his  hand  like  that  (il- 
lustrating), and  he  said,  "Go  ahead — say  it,"  to  the  other 
fellow,  and  the  other  fellow  started  in  to  cry  and  said, 
'Yes'."  It  would  seem  that  the  'young  fellow'  referred 
to,  was  Gelsky.  Schwitofsky  continued,  "And  from  there 
I  was  taken  into  the  back  room  and  charged  before  the 
clerk  of  the  Court  in  the  back  room  on  a  charge  of  unlaw- 
ful entry. ' '  Being  asked  whether  he  saw  the  three  women 
witnesses  at  the  side  of  the  room  at  the  entrance,  the 
reply  was,  "I  never  knowed  them,  who  they  were,  or 
anything  else."  To  the  question,  "Are  they  the  three 
women  that  appeared  here",  the  answer  was,  "Yes  sir, 
those  are  the  three,  two  white  women  and  a  colored 
woman.  They  were  seated  right  there.  When  the  clerk 
in  the  back  room  asked  me  if  I  plead  guilty  or  not  guilty, 
I  pleaded  not  guilty,  and  I  had  to  sign  my  name  there, 
and  I  was  taken  to  the  corridor  to  wait  to  be  arraigned 
before  Magistrate  O'Connor." 

His  counsel  said,  "Now,  tell  about  the  identification 
by  these  three  women.  Where  were  they  when  they  came 
in  and  pointed  you  out?"  Schwitofsky  answered,  "They 


42  TWENTY  YEARS  IX  STATE'S  PRISON 

did  not  point  me  out  at  all.  They  never  came  over  to  me. ' ' 
1  'Now,"  said  the  lawyer,  "you  heard  the  officer,  Alfred, 
testify  that  you  were  placed  in  the  audience."  Schwitof- 
sky  interrupted,  *  *  No  sir,  that 's  a  lie. "  "  Wait  a  minute, ' ' 
said  the  lawyer,  "that  you  were  placed  out  in  the  audi- 
ence, that  these  three  women  were  called  in  and  went  up 
near  you  in  the  audience  and  pointed  you  out ;  is  that  so  or 
not ?  "  "No  sir,  it  isn 't  so.  Nothing  like  that  happened. ' ' 
Counsel  asked,  "Were  you  placed  in  the  audience, — wait 
a  minute,  I  want  to  get  the  question — were  you  at  any 
time  up  there  placed  in  the  audience  at  all  ? "  Schwitof- 
sky  answered,  "No  sir.  Never  was  placed  in  the  au- 
dience ;  never  was  pointed  out ;  never  saw  a  hand  put  on 
me  by  any  of  the  women."  Under  cross-examination 
by  the  District  Attorney's  representative  he  again  denied 
Officer  Brown's  statement  as  to  the  identification. 

The  present  writer,  knowing  something  of  the  methods 
of  the  police,  is  strongly  disposed  to  believe  Schwitof- 
sky's  story  of  identification  rather  than  that  of  Brown. 
The  reader  will  do  well  to  study  "The  Journalist's  Story" 
at  this  point.  It  is  a  common  thing  for  police  officers  to 
manage  to  suggest  or  indicate  the  person,  whom  they 
wish  identified,  to  the  witnesses,  who,  after  the  lapse  of 
time  that  usually  occurs  between  the  commission  of  an 
offense  and  the  arrest  of  the  accused,  have  no  really 
clear  recollection  of  the  person  who  committed  the  offense, 
and  who,  quite  unconscious  of  the  fact  that  their  identifi- 
cation is  from  the  suggestion  of  that  moment  and  not  the 
clear  recollection  of  the  features  and  appearance  of  the 
person  who  committed  the  crime,  stoutly  swear  to  the 
identification  of  the  accused,  and  persist  in  their  faith 
that  their  identification  is  righteous  to  the  end. 

In  view  of  all  the  circumstances  then,  it  may  be  said 
that  this  positive  identification  on  which  the  District  At- 
torney's Office  and  the  Court  placed  so  much  stress,  is  in 
this  case  quite  unreliable.  Dale's  evidence  must  be  dis- 


TWENTY  YEAES  IN  STATE'S  PEISOX  43 

missed  from  consideration,  for  there  is  no  doubt  that  he 
committed  willful  perjury  in  this  case.  The  identification 
by  Anna  Hart,  the  colored  cook,  may,  under  all  the  cir- 
cumstances, also  be  held  to  be  inconclusive.  As  has  been 
shown,  both  the  other  young  girls,  who  are  unquestion- 
ably honest  witnesses,  and  who  had  the  fullest  intention 
only  to  testify  to  the  truth,  were  so  confused  and  dis- 
turbed by  the  extraordinary  occurrences  in  Dale's  house 
on  the  morning  of  the  19th  of  January,  that  their  testi- 
mony is  unreliable. 

APPELLATE  COUET. 

Surprised  and  disconcerted  but  not  dismayed  nor 
daunted  by  the  unexpected  result  of  the  appeal  to  Judge 
0 'Sullivan,  the  defenders  of  Schwitofsky  resumed  their 
work  of  proving  his  innocence.  MB.  FRANCIS  D.  GALLATIN, 
a  high-minded  and  able  lawyer,  was  induced  to  appear 
as  Schwitofsky 's  Counsel,  and  drew  up  an  admirable  and 
clear  brief  on  Appeal,  and  ME.  SAMUEL  UNTEEMYEB,  the 
famous  New  York  lawyer  and  one  of  the  leading  lawyers 
in  this  country,  very  kindly  undertook  to  argue  the  case. 
On  Wednesday,  March  19,  1913,  the  appeal,  both  from 
Judge  0 'Sullivan's  decision  to  deny  the  new  trial  and 
from  the  verdict  at  the  trial,  was  argued  in  the  Supreme 
Court,  and  on  the  4th  of  April  following,  the  decision  was 
handed  down  denying  the  Appeal.  There  was  one  dis- 
sentient, but  as  no  opinion  was  given  either  by  the  Court 
itself  or  by  the  dissenting  Justice,  the  public  has  no 
means  of  arriving  at  any  knowledge  of  the  grounds  on 
which  the  Appeal  was  denied,  or  the  grounds  on  which 
the  dissentient  disagreed  with  his  brothers.  It  must, 
however,  be  observed  that  since  much  that  has  come  to 
the  knowledge  of  Schwitof sky's  supporters  had  come  to 
light  only  after  the  lapse  of  the  twelve  months  in  which 
the  law  recognizes  newly  discovered  evidence,  much  that 


44  TWENTY  YEARS  IN  STATE'S  PEISON 

is  quite  convincing  could  not  be  brought  before  the  Appel- 
late Division. 


THE    NEWLY    DISCOVERED    EVIDENCE. 

When  denying  the  first  appeal,  Judge  0 'Sullivan 
briefly  dealt  with  the  newly  discovered  evidence,  and 
pointed  out  that  most  of  his  'newly  discovered'  evi- 
dence was  accessible  at  the  time  of  the  trial  and  could 
have  been  procured.  The  learned  Judge,  however,  did 
not  point  out  ~by  whom  it  could  have  been  procured.  The 
unfortunate  Schwitofsky  had  sent  him  letter  after  letter, 
certainly  ill-spelt  and  somewhat  hysterical  in  tone,  but 
nevertheless  clearly  stated,  in  which  he  complained  that 
the  counsel  assigned  by  the  Court  positively  refused  to 
pay  any  regard  to  this  evidence.  The  poor  fellow  was 
entrapped  in  a  'vicious  circle'  of  unyielding  legalities 
which  deprived  him  of  any  chance  of  receiving  justice. 
Miserably  poor,  he  had  no  means  to  engage  counsel,  and 
had  to  accept  counsel  assigned  by  the  Court.  Two  of  the 
three  so  assigned  immediately  concluded  that  the  man 
was  mad,  and  the  third  treated  him,  even  in  court  at  the 
trial,  in  a  manner  which  suggested  his  belief  that  the  man 
was  irresponsible  and  semi-imbecile.  Mr.  Bosler,  if 
Schwitofsky  is  to  be  believed,  and  there  is  no  particular 
reason  for  doubting  his  statement,  told  him  that  he  was 
in  no  position  to  spend  time  and  money  in  hunting  up 
these  witnesses,  so  that  the  poor  fellow  was  not  merely 
ill-defended,  but  the  failure  of  the  counsel,  assigned  by 
the  Court,  to  do  him  justice  was  held  by  that  Court  to  be 
a  reason  for  denying  him  any  further  hearing.  When 
Schwitofsky  indignantly  remonstrated  at  the  attitude  of 
the  assigned  counsel  and  demanded  the  substitution  of 
other  counsel,  he  appears  to  have  angered  the  Court. 
The  Court  said,  "In  my  opinion,  the  defendant  was 
fairly  tried.  Two  reliable  and  experienced  attorneys  were 


TWENTY  YEARS  IN  STATE'S  PRISON  45 

assigned  to  the  defendant  by  the  Court.  They  had  ample 
time  to  acquaint  themselves  with  every  phase  of  the  case, 
and  I  believe  were  familiar  with  all  the  facts  and  cir- 
cumstances, and  could  have  adduced  the  testimony  upon 
which  it  is  now  sought  to  obtain  a  new  trial. ' ' 

It  is  to  be  remarked  that  the  Court  did  not  impugn  the 
value  and  importance  of  the  new  testimony,  but  regarded 
the  fact  that ' '  the  two  reliable  and  experienced  attorneys '  * 
did  not  adduce  it,  as  sufficient  reason  for  denying  it  any 
attention.  It  may,  of  course,  have  happened  that  if  the 
affiants,  whose  affidavits  formed  the  ground-work  for  the 
motion  for  a  new  trial,  were  put  under  cross-examination, 
that  operation  might  have  resulted  in  weakening  the  force 
of  their  testimony.  But  here  is  a  witness  who  swears 
that  he  was  beaten  by  the  police  into  identifying  Schwit- 
of sky  as  the  man  he  sent  to  Dale  's  house  on  the  morning 
of  the  19th  of  January,  whereas  Schwitofsky  was  not 
the  man  he  sent.  Here  is  Frank  Harold,  an  absolutely 
disinterested  witness,  who  swears  that  the  fugitive  whom 
he  stopped  on  the  morning  of  the  19th  must  have  on  the 
back  of  his  left  wrist,  the  scars  of  scratches  made  by  his, 
Harold's,  finger  nails,  and  who  also  swears  that  the  pistol 
he  took  from  the  fugitive  was  unloaded.  Here  is  Detec- 
tive-Sergeant Edward  J.  Cousin,  who  swears  that  he 
received  the  said  pistol  from  Harold  on  the  morning  of 
the  occurrences,  and  that  it  was  then  unloaded.  Here  is 
Dr.  Eansom,  who  swears  that  he  has  made  a  microscopi- 
cal examination  of  the  back  of  Schwitof  sky's  hands,  and 
finds  no  marks  of  any  finger-nail  scratches.  None  of  this 
evidence  was  brought  forward  by  the  l  reliable  and  exper- 
ienced' attorneys  at  the  trial,  though,  if  they  had  done 
their  plain  duty  not  merely  as  lawyers  but  as  conscien- 
tious human  beings,  they  should  have  brought  it  forth. 
How  vicious  must  be  that  legal  system  which  leads  to  the 
suppression  of  important  evidence  in  favor  of  an  unhappy 
wretch,  accused  of  a  crime  of  which  he  is  innocent,  while 


46  TWENTY  YEAES  IN  STATE'S  PEISON 

a  wealthy  city  provides  tremendously  effective  machinery 
for  prosecution,  with  unlimited  powers,  funds  and  assis- 
tants, which,  in  such  a  case,  becomes  a  terrific  instrument 
of  oppression  and  injustice!  And  when  a  few  disinter- 
ested workers  take  up  the  cudgels  for  the  victim,  and  at 
their  own  expense  of  time  and  money  provide  the  missing 
proof  of  innocence,  the  Court  will  pay  no  attention 
because : 

1.    A   certain  time  has   elapsed,   and  therefore   the 
Court  cannot  listen ; 

2.  Because  officers  assigned  by  the  Court  heartlessly 
neglect  to  take  the  least  trouble  to  procure  the  evidence 
in  proper  time. 

THE  SCABS  ON  THE  HAND THEIR  SIGNIFICANCE. 

In  his  'Opinion'  denying  the  motion  for  appeal 
Judge  0 'Sullivan  said:  "The  defendant's  motion  is  based 
on  alleged  newly-discovered  evidence  as  to  his  identity, 
on  the  theory  that  certain  scars  on  his  wrist  were  relied 
upon  to  a  material  extent  to  prove  his  identity  as  the 
actual  offender. ' ' 

This  passage  displays  a  singular  and  almost  inexplic- 
able misconception  on  the  part  of  Judge  0  'Sullivan  as  to 
what  importance  was  really  attached  by  the  appellant, 
both  to  the  scars  that  were  on  the  under-surface  of  his 
own  wrist,  and  to  scars  on  the  upper  surface  or  back  of 
the  wrist,  which  should  have  been  apparent  had  he  really 
been  the  man  sought  for. 

At  one  point  in  the  cross-examination  of  the  arresting 
officer,  William  Brown,  counsel  for  the  defense  asked 
witness  what  Dale  said  about  examining  the  defendant's 
wrist,  to  which  Brown  replied, '  *  Mr.  Dale  never  examined 
his  wrist."  Kier  asked,  "Well  who  did?"  Brown  ans- 
wered, "Mr.  Harold,  the  chauffeur.  He  was  the  second 
man  that  identified  him."  Kier  went  on,  "Well,  what 


TWENTY  YEAES  IN  STATE'S  PKISON  47 

did  he  say  about  his  wrist?"  Brown  was  beginning  his 
answer,  when  the  Court  intervened  with,  "Now,  this  is 
not  proper  cross-examination,"  and  stopped  the  line  of 
questioning. 

Every  lawyer  or  person  familiar  with  the  rules  of 
testimony  will  see  at  once  that  the  Court  meant  that  if 
there  were  any  desire  to  elicit  Harold's  reason  for  exam- 
ining the  defendant's  wrists,  Harold  was  the  proper 
person  to  give  the  evidence.  But,  "why  was  not  Harold 
called?"  is  the  question  that  was  asked  by  Harold  him- 
self, as  we  have  seen,  and  surely  should  be  asked  by  every 
reasonable  man.  The  District  Attorney's  Office  knew  that 
Harold  had  seized  the  fugitive  who  ran  from  Dale's 
house;  that  Harold  had  wrested  the  revolver  from  him 
and  that  Harold  had  scratched  the  wrist  of  the  man  who 
was  in  Dale's  house.  Why  was  lie  not  called  in  evidence? 
On  re-cross-examination  of  the  defendant,  McCormick 
asked  him,  "Now,  the  reason  the  chauffeur  wanted  to 
look  at  your  wrist  was  that  at  the  time  he  stopped  you 
your  wrist  was  cut  by  his  nail,  wasn't  it?"  This  shows 
that  the  District  Attorney  knew  that  what  was  being 
looked  for  by  the  chauffeur  were  nail  marks  on  the  back 
of  defendant's  wrist.  The  defendant's  answer  was,  "No. 
He  wanted  to  look  at  my  wrist  and  examined  my  wrist, 
and  then  he  shook  his  head. ' '  Now,  if  Schwitof sky  had 
been  really  guilty  he  could  not  have  failed  to  know  that 
his  wrist  had  been  scratched.  If  he  were  the  man  whom 
Harold  stopped  and  if  the  scars  had  been  wholly  obliter- 
ated by  healing  (an  event  medically  impossible)  he  would 
at  least  have  made  capital  out  of  the  fact  and  would  have 
dwelt  on  the  examination  by  Harold  of  the  back  of  his 
ivrist. 

But  if  (as  is  the  contention)  Schwitof  sky  was  inno- 
cent then  the  only  answer  he  could  give  was  that  quoted 
above.  Nothing  had  been  brought  out  in  evidence  about 
Harold's  reason  for  examining  his  wrist  and  the  fact 


48  TWENTY  YEAES  IX  STATE'S  PRISON 

that  Harold  had  scratched  his  wrist  did  not  transpire  to 
the  knowledge  of  Schwitof sky 's  friends  until  months 
later. 

Later  on  the  foreman  of  the  jury  asked  permission  to 
see  defendant's  wrist  and  then  the  rest  of  the  jury  exam- 
ined it.  They  saw  that  there  were  well-defined  scars  of 
old  cuts  on  the  inner  surface  of  the  wrist.  No  one  had 
informed  them  that  there  should  also  at  least  be  the 
scars  of  new  finger-nail  scratches  on  the  outer  surface  or 
back  of  the  wrist.  When  the  prisoner  finally  grasped  the 
significance  possibly  attached  by  the  jury  to  the  scars 
and  wished  to  explain  how  he  came  by  those  scars,  the 
Court  refused  to  hear  him,  as  it  was  then  too  late.  Who 
shall  doubt  (nay,  the  writer  has  had  practically  an  ad- 
mission from  one  of  the  jurors  to  that  effect)  that  the 
jury  were  convinced  that  Harold  identified  him  by  the 
old  scars  of  the  attempted  suicidal  deed  of  1908,  and  that 
his  reason  for  examining  the  wrists  was  to  see  whether 
the  arrested  man  had  these  old  scars. 

As  we  know,  Harold  examined  the  man's  wrist  to  look 
for  the  scars  of  his  own  finger  nails  on  the  back  of  his 
hand;  that  the  old  scars  which  are  on  Schwitofsky's  wrist 
were  not  what  he  looked  for,  but — and  this  is  a  very  im- 
portant point — the  Jury  believed  that  they  were  the  marks 
by  which  Harold  identified  him.  As  Harold  was  not  there 
to  disabuse  their  minds,  as  the  prisoner  was  not  per- 
mitted, when  he  realized  the  importance  of  the  point,  to 
explain  in  self-defense  and  as  his  counsel  were  too  negli- 
gent, or  ignorant  of  the  facts,  to  explain  the  matter,  the 
identification  by  the  witnesses  for  the  prosecution  was 
strengthened  in  the  minds  of  the  jury  by  the  feeling 
that  the  scars  on  Schwitofsky's  wrist  were  the  scars  for 
which  Harold  looked.  Thus  Judge  0 'Sullivan's  state- 
ment that  certain  scars  on  his  wrist  were  relied  upon  to 
a  material  extent  to  prove  the  identity  of  the  offender 
was  not  the  fact.  What  appellant  was  trying  to  prove 


TWENTY  YEARS  IX  STATE'S  PEISOX  49 

with  respect  to  the  scars  was  that  the  absence  of  finger- 
nail scratches  on  his  hand  absolutely  proved  that  he  could 
not  be  the  offender. 


THE  JURY  S  FINDING. 

The  Jury  found  Schwitofsky  guilty  as  indicted,  of 
burglary  in  the  second  degree  and  felonious  assault  in 
the  first  degree.  Section  403  of  the  Penal  Law  of  New 
York  State  thus  defines  * '  burglary  in  the  second  degree ' ' : 

"A  person  who,  with  intent  to  commit  some  crime 
therein,  breaks  and  enters  the  dwelling  house  of  another, 
in  which  there  is  a  human  being,  under  circumstances 
not  amounting  to  burglary  in  the  first  degree,  is  guilty  of 
burglary  in  the  second  degree." 

The  essential  quality  of  the  act  of  burglary  in  the 
second  degree  is,  we  see,  the  intent  to  commit  a  crime. 
In  this  case  the  indictment  charges  Schwitofsky  with  the 
intention  of  "  burglariously  and  feloniously  stealing  the 
goods,  chattels  and  personal  property  of  the  said  Theo- 
dore B.  Dale."  Throughout  the  trial  the  prosecution 
made  not  the  slightest  attempt  to  prove  intent.  It  was 
not  alleged  that  the  defendant  was  in  any  position,  or 
made  any  attempt,  to  steal,  or  that  there  was  anything 
stolen.  The  jury  apparently  was  allowed  to  infer  from 
the  fact  that  the  man  was  in  the  house,  and  from  the 
fact  that  when  the  occupants  tried  to  detain  him  he  flour- 
ished a  revolver,  that  there  was  intent  to  commit  a  crime. 
But  since  the  crime  which  the  prosecution  alleges  he  in- 
tended to  commit  was  that  of  theft  and  not  of  assault, 
there  is  surely  at  this  point  a  strong  reason  for  describing 
the  prosecution  as  having  absolutely  failed  to  prove 
burglary  in  the  second  degree.  The  man  who  went  into 
Dale's  house  that  morning  went  in,  not  to  steal,  but  to 
collect  a  debt.  Whether  the  demand  for  the  $100  alleged 
to  be  due  to  Gelsky  was  blackmail  or  simply  debt-collec- 


50  TWENTY  YEARS  IN  STATE'S  PRISON 

ting  would  depend  upon  the  view  taken  by  the  jury  of 
the  value  of  Gelsky's  evidence  had  he  been  placed  in  the 
witness  chair.  That  the  District  Attorney  was  aware  of 
the  connection  between  the  two  cases  it  would  be  an  insult 
to  his  intelligence  to  doubt ;  that  the  judge  was,  or  should 
have  been,  aware  of  it,  is  proven  by  the  fact  of  his  re- 
ceiving a  warning  letter  from  the  Jewish  Chaplain  which 
letter  was  not  retained  by  him  as  a  private  communica- 
tion but  was,  at  his  direction,  attached  to  the  papers  in 
the  case.  The  writer  is  no  lawyer,  but  the  essential 
element  of  intent  was  in  his  opinion  neither  entered 
upon,  nor  proven.  What  does  the  average  reader  think? 
But  if  the  jury  were,  from  a  legal  point  of  view,  justified 
in  considering  that  the  fact  of  entering  implied  the  intent 
(and  there  are  cases  which  might  be  quoted  to  show  that 
the  law  does  not  permit  this)  what  will  be  said  with 
respect  to  the  second  count  in  the  indictment  of  which 
the  accused  was  found  guilty? 

Assault  in  the  first  degree  is  thus  defined  in  Section 
240  of  the  Penal  Law : 

"A  person  who,  with  intent  to  kill  a  human  being,  or 
to  commit  a  felony  upon  the  person  or  property  of  the 
one  assaulted,  or  of  another, 

1.  Assaults  another  with  a  loaded  fire  arm  or  any 
other  deadly  weapon,  or  by  any  other  means  or  force 
likely  to  produce  death;  or 

2.  Administers  to,  or  causes  to  be  administered  to  or 
taken  by  another,  poison  or  any  other  destructive  or  nox- 
ious thing  so  as  to  endanger  the  life  of  such  other, 

Is  guilty  of  assault  in  the  first  degree. ' ' 

This  definition  is  perfectly  clear.  An  attempt  was 
made  to  show  that  the  revolver  which  the  pretended  tele- 
phone repair-man  flourished  was  loaded,  and  in  the  fol- 
lowing manner.  While  Dale,  the  complaining  witness, 
was  giving  the  evidence,  during  the  course  of  the  direct 


TWENTY  YEARS  IN  STATE'S  PRISON  51 

examination,  the  Court  asked,  "Did  you  see  the  revol- 
ver ?  "  To  which  the  witness  answered,  * '  Yes  sir. ' '  The 
next  question  was,  "How  near  were  you  to  him  at  the 
time?"  and  the  answer  was,  "The  width  of  the  door, 
about  three  feet."  To  the  question,  "Do  you  know 
whether  or  not  it  was  loaded  at  the  time?"  witness  ans- 
wered, "I  saw  cartridges  in  it,"  and  to  the  next  question, 
"When,"  the  answer  was,  "At  the  time  he  pointed  it  at 
me."  The  fact  that  Dale  swore  that  there  were  cartridges 
in  the  revolver  when  it  was  pointed  at  him  was  the  sole 
evidence  which  the  prosecution  relied  upon  to  prove 
the  necessary  element  for  felonious  assault  in  the  first 
degree,  that  is,  that  it  was  "a  loaded  fire  arm."  It  did 
not  occur  to  the  Court  to  ascertain  whether  the  cartridges 
had  not  been  fired  off,  or  whether  they  were  not  blank 
cartridges. 

Now,  there  is  entirely  convincing  and  irrefragable 
proof,  as  shown  in  the  affidavits  of  the  chauffeur,  Harold, 
and  the  detective,  Cousin,  that  the  revolver  that  was  on 
that  day  wrested  from  the  fugitive  had  two  blank  car- 
tridges, while  the  rest  of  the  chambers  were  empty.  Will 
it  be  maintained  that  a  weapon  so  void  of  offensive  power 
can  be  described  as  'a  loaded  firearm  or  other  deadly 
weapon?'  It  is  the  usual  practice  in  the  courts,  when 
ever  a  weapon  has  been  flourished  or  used  in  a  case  of 
assault,  to  produce  that  weapon  and  make  it  one  of  the 
'People's  Exhibits.'  As  far  as  can  be  ascertained, 
the  revolver  taken  from  the  fugitive  on  January  19, 1911, 
has  never  left  the  custody  of  the  property  clerk  at  police 
headquarters  from  that  day  to  this.  If  there  be  grounds 
for  difference  of  opinion  on  the  question  of  whether  the 
jury  was,  or  was  not,  justified  in  finding  the  accused  guilty 
of  burglary  in  the  second  degree,  there  are  no  conceivable 
grounds  which  would  justify  the  jury  in  denying  the  con- 
tention that  since  the  pistol  was  ?mloaded  and  was  not 
a  lethal  weapon,  therefore  the  intent  to  kill  a  human  being 


52  TWENTY  YEAES  IN  STATE'S  PBISON 

(which  is  the  first  essential  to  assault  in  the  first  degree) 
or  the  intent  to  commit  a  felony  upon  the  person  or 
property  of  the  one  assaulted,  was  ENTIRELY  ABSENT.  No 
one  holding  an  empty  revolver  across  a  room  at  a  person 
can  be  accused,  certainly  cannot  be  convicted,  of  an  at- 
tempt to  kill  that  person,  and  since,  according  to  all  the 
evidence,  the  object  of  flourishing  the  empty  revolver 
was  to  enable  the  offender  to  secure  egress,  there  was  no 
attempt  to  commit  a  felony  upon  person  or  property. 

DALE  IN  A  THIRD  CASE. 

On  the  16th  of  December,  1912,  Theodore  B.  Dale  met 
Jack  Young,  a  young  fellow  aged  seventeen,  who  describes 
himself  as  an  actor,  in  a  subway  car  near  the  110th  Street 
Station.  Dale  accosted  him,  and  eliciting  that  Young  was 
out  of  employment,  invited  him  to  accompany  him  to  his 
home,  promising  to  secure  employment  for  him.  Young 
accepted  the  invitation,  and  when  they  reached  Dale's 
home  in  West  116th  Street  Dale  attempted  to  commit  an 
act  on  him  of  a  similar  nature  to  that  described  by  Gelsky 
as  having  taken  place  in  January,  1911.  Young  resisted 
stoutly,  and  there  ensued  a  struggle  in  which  a  colored 
housekeeper  of  Dale's  took  part.  The  noise  attracted 
the  attention  of  Officer  William  J.  Koop  who,  hearing 
Young's  story,  arrested  Dale.  On  the  17th  Magistrate 
Murphy  held  Dale  in  $500  bail  on  a  charge  of '  *  soliciting. ' ' 
The  charge  was  apparently  a  compromise  between  the 
magistrate's  desire  to  have  Dale  held  for  trial  by  Special 
Sessions  and  the  fact  that,  under  the  circumstances,  it 
was  difficult  to  find  a  section  of  the  Penal  Code  under 
which  Dale  could  be  charged  with  anything  more  than 
'disorderly  conduct,'  or  some  such  comparatively  trivial 
offense.  On  January  24th  Dale,  who  was  out  on  bail,  was 
presented  at  Special  Sessions  and  pleaded  not  guilty,  and 
the  case  was  remanded  for  one  week.  On  the  31st  of  Jan- 


53 

nary,  when  the  case  was  called,  Dale  did  not  put  in  an 
appearance.  Affidavits  were  submitted  showing  that  he 
had  absconded  from  this  city.  His  bail  was  forfeited. 

After  a  few  weeks'  absence  Dale  returned  to  the  city. 
It  is  alleged  that  he  first  came  back  to  Chicago,  there  told 
his  story  to  a  firm  of  lawyers,  and  was  by  them  counselled 
to  return  and  plead.  He  surrendered  himself  before  the 
Court  of  Special  Sessions  on  February  28,  1913,  pleaded 
guilty  to  the  charge,  and  was  remanded  for  a  week.  It 
was  during  the  currency  of  this  week  that  he  came  under 
the  notice  of  the  Jewish  chaplain  of  the  Tombs,  and  was 
recognized  as  the  complaining  witness  in  the  Schwitofsky 
case.  On  March  llth  new  counsel  appeared  for  him, 
and  an  affidavit  was  submitted  that  Dale's  previous  plea 
of  guilty  had  been  entered  while  Dale  was  in  an  extremely 
nervous  and  excited  condition,  and,  other  reasons  being 
shown  for  that  course,  his  plea  of  guilty  was,  by  permis- 
sion of  Court,  withdrawn.  He  pleaded  not  guilty,  and 
was  held  in  $1,000  bail  for  trial,  the  date  being  fixed,  ac- 
cording to  the  usual  practice  of  Special  Sessions,  for  that 
day  week.  On  the  18th  of  March  when  his  case  was  called, 
he  was  again  absent.  His  bond  was  again  forfeited,  and 
next  day  he  was  found  dead  in  his  home  at  126th  Street, 
having  committed  suicide  by  inhaling  gas. 

During  this  period  in  March  a  great  deal  of  informa- 
tion about  Dale,  of  a  very  striking  and  important  nature, 
reached  the  ears  of  the  writer.  The  information,  coming 
from  official  sources  but  being  given  unofficially,  could  not 
be  made  the  subject  of  affidavits.  One  unfortunate  result 
of  Dale 's  suicide  is  that  the  report  of  the  Probation  Officer 
of  Special  Sessions  Court, — the  result  of  his  investiga- 
tions in  the  beginning  of  March  before  the  withdrawal  of 
Dale's  plea  of  guilty — was  not  presented  to  the  Court  and 
therefore  not  available  to  the  general  public.  But  there 
is  very  sufficient  reason  for  believing  that  when  the  time 
comes,  and  when,  with  proper  authority,  this  report  is 


54  TWENTY  YEARS  IN  STATE'S  PRISON 

published,  it  will  cast  strong  light  upon  the  character  of 
Dale,  and  especially  on  his  attitude  in  the  Schwitofsky 
case.  It  may  be  asked:  Why  did  Dale  abscond  in  Jan- 
uary, 1913?  Why  did  he  return  in  February?  Why  did 
he  first  plead  guilty,  and  then  withdraw  his  plea?  And 
finally,  why  did  he  commit  suicide?  The  answers  to  all 
these  questions  will  be  very  instructive,  but  can  only  be 
put,  at  this  stage,  in  a  conjectural  form.  Dale  fled  in  the 
first  instance  because  his  past,  he  knew,  would  not  bear 
investigation,  and  because  he  had  been  caught  this  time 
under  such  conditions  that  there  seemed  to  be  very  little 
chance  of  his  escaping  punishment,  or  at  least,  exposure. 
It  is  said  that  he  had  important  business  interests  in 
New  York,  which  accounts  for  his  return.  It  is  rumored 
that  he  spent  money  lavishly  for  legal  advice,  and  it  is 
alleged  that  thousands  of  dollars  went  into  the  hands  of 
various  firms  of  lawyers  before  he  surrendered  himself 
in  February.  When  he  did  so  he  pleaded  guilty,  probably 
not  knowing  of  the  Court's  practice  of  investigation  when 
such  pleas  are  entered.  An  authoritative  statement  has 
been  made  that  when  the  investigating  officer  interrogated 
him  about  his  past,  he  tendered  the  sum  of  $1,000  in  notes 
through  the  bars  of  his  cell,  to  secure  the  promise  of  a 
favorable  report  and  the  suppression  of  unfavorable 
facts.  The  bribe  being  refused,  and  learning  from  the 
lawyers  that  the  charge  of  'soliciting'  could  not  legally 
be  maintained  against  him,  he,  on  the  advice  of  counsel, 
withdrew  his  plea  and  substituted  one  of  not  guilty.  Dur- 
ing the  week  which  intervened  between  the  new  plea 
and  the  trial,  he  is  described  as  having  been  in  a 
state  of  excitement  and  hysteria  almost  amounting  ta 
mania.  He  alternated  between  expressions  of  abject 
dread  as  to  the  results  of  cross-examination  if  he 
stood  trial,  and  of  defiance  of  those  whom  he  considered 
his  enemies  (chief  among  them  being,  in  his  opinion,  the 
writer)  and  demanding  that  he  be  confronted  with  his- 


TWENTY  YEARS  IN  STATE'S  PRISON  55 

persecutors.  The  end  came  by  suicide,  really  through 
dread  of  exposure  of  his  perjury  in  the  Schwitofsky  case, 
if  certain  statements  quoted  as  having  been  made  by  him 
are  reliable — and  they  come  from  a  source  which  seems 
beyond  suspicion. 

It  will  be  seen  that  while  Dale  might  be  very  close 
and  keen  in  business  matters,  for  he  seems  to  have  borne 
the  reputation  of  being  a  sharp  business  man,  wherever 
his  weakness  of  moral  character  and  infamous  practices 
were  touched  he  was  quite  prepared  to  spend  money 
lavishly.  It  must  be  asked  if  this  characteristic  did  not 
probably  display  itself  throughout  his  career,  and 
whether  it  may  not  have  some  bearing  upon  the  ex- 
traordinary and  suspicious  points  surrounding  the  arrest 
and  trial  of  Schwitofsky? 

THE  DISTBICT  ATTOBNEY  INTEBVIEWED. 

When  the  writer  first  discovered  Dale  in  the  cell  in 
the  Tombs  early  in  March,  1913,  the  appeal  in  Schwitof- 
sky's  case  to  the  Appellate  Division  was  on  the  point  of 
being  made.  The  fact  of  Dale 's  having  been  arrested  and 
having  confessed  his  guilt  in  the  charge  made  by  Young 
had  a  very  important  bearing  on  the  Schwitofsky  case, 
as  tending  to  show  the  extreme  probability  of  the  truth  of 
Gel  sky's  charge  two  years  before.  The  information  was 
at  once  placed  before  Messrs  Untermyer  and  Gallatin, 
the  eminent  counsel  who  were  acting  for  Schwitofsky. 
Those  gentlemen  said  that  the  lapse  of  time  made  it  im- 
possible to  bring  this  important  fact  within  the  purview 
of  the  Appellate  Court.  In  vain  the  writer  repeated  the 
plea  of  poor  Bassanio : 

" I  beseech  you, 

Wrest  once  the  law  to  your  authority : 
To  do  a  great  right  do  a  little  wrong." 


56  TWENTY  YEARS  IN  STATE'S  PRISON 

The  honorable  counsel  replied,  as  did  Portia, 

"It  may  not  be, 
There  is  no  power  in  Venice, ' ' 

or  words  to  the  same  effect. 

Accompanied  by  Mr.  Frank  Marshall  White,  the  jour- 
nalist whose  work  in  the  Schwitof  sky  case  was  of  such  su- 
preme importance,  and  Mr.  Eddy  of  the  New  York  World, 
the  writer  called  upon  the  Honorable  Charles  F.  Whitman, 
the  District  Attorney  of  New  York  County,  at  his  office, 
informed  him  of  the  latest  developments  in  the  case,  and 
begged  him  to  take  advantage  of  the  presence  of  Dale  in 
the  Tombs  to  re-investigate  the  case  of  Schwitofsky.  Mr. 
Whitman  was  very  courteous  in  manner  and  expressed 
his  desire  to  all  in  his  power  but  when  entreated  to 
take  charge  of  the  case  himself  he  expressed  his  regret 
that  he  was  too  much  occupied.  He  tendered  the  services 
of  his  chief  assistant,  who  whenever  he  is  absent  is  Acting 
District  Attorney,  Mr.  Wasservogel. 

Mr.  Wasservogel  was  visited  the  next  day,  and  when 
the  writer  said,  "I  must  ask  you  now  to  let  me  tell  you 
briefly  the  salient  facts  in  the  case  of  Alfred  Schwitof- 
sky," he  was  interrupted  by  Mr.  Wasservogel  with  the 
statement, ' '  Oh,  I  know  all  about  that  case ;  indeed,  there 
is  not  a  man  in  the  District  Attorney's  office  who  doesn't 
know  the  whole  case."  Unless  Mr.  Wasservogel  con- 
sidered Mr.  Whitman  more,  or  less,  than  a  man,  it  seems 
permissible  to  conclude  from  this  statement  that  Mr. 
Whitman  personally  knew  all  about  the  Schwitofsky  Case. 
Thus  the  blame  for  the  extraordinary  miscarriage  of 
justice  in  the  case  of  Schwitofsky  must  rest  on  Mr.  Whit- 
man's shoulders.  McCormick's  responsibility  must  now 
be  passed  on  to  him. 


TWENTY  YEAES  IN  STATE'S  PRISON  57 

WHAT  REMAINS  TO  BE  DONE. 

When  discussing  this  case  with  various  citizens  of 
greater  or  lesser  eminence,  for  the  writer  has  striven  to 
secure  support  in  every  possible  direction,  more  than 
once  the  suggestion  has  been  made  that  the  facts  be  placed 
before  the  Governor  and  an  appeal  be  made  for  Executive 
Clemency,  to  which  the  writer  has  always  replied:  "If 
the  man  is  guilty,  as  charged,  and  if  the  conviction  was 
just,  then  there  is  no  reason  why  the  Governor  should  in- 
tervene. If  the  conviction  was  mistaken  and  the  man  is 
innocent,  then  a  pardon  does  not  meet  the  necessities  of 
the  case."  Said  one  eminent  lawyer,  "Are  you  not,  in 
the  final  analysis,  really  playing  with  the  poor  fellow's 
liberty?"  To  which  the  writer,  a  clergyman,  made  the 
reply,  "Now,  God  do  so  unto  me  and  more  also,  if  I  rest, 
or  cease  agitating,  while  there  is  a  chance  of  getting  jus- 
tice, and  not  mercy,  for  the  poor  wretch." 

Obviously,  the  easiest  way  out  of  the  difficulty  would 
be  to  ask  for  a  pardon,  and  very  possibly  there  would  not 
be  much  trouble  in  securing  one.  But  Schwitof  sky's  fate 
has  now  become  of  minor  importance  in  the  problem  in- 
volved. If  Schwitofsky  be  innocent  we  have  the  case  of 
an  unfortunate  sentenced  by  a  Court  of  this  County  to 
twenty  years  imprisonment,  under  conditions  which  are  an 
arraignment  of  our  whole  legal  system.  The  following 
questions,  always  assuming  the  absolute  innocence  of 
Schwitofsky,  must  be  asked : 

Why  was  this  man  arrested? 

What  led  to  his  selection  as  the  culprit? 

Why  did  the  Police  suppress  the  fact  that  an  unloaded 
pistol  might  be  made  an  exhibit  in  the  case? 

Why  were  the  charges  against  this  innocent  man  made 
to  grow  in  gravity  as  time  passed? 


58  TWENTY  YEAES  IX  STATE'S  PBISON 

Why  was  the  case  tried  in  so  slovenly  a  manner? 
Why  was  it  defended  in  so  unsatisfactory  a  manner? 

Why  did  not  the  District  Attorney's  Office  produce  the 
pistol  in  the  Court? 

Why  was  not  Harold  called  to  testify  as  to  what  it  was 
he  was  looking  for  when  he  examined  the  wrists  of 
Schwitofsky? 

Why  was  not  Cousin  called  to  testify  to  the  condition 
of  the  supposed  lethal  weapon  when  it  was  passed  to  his 
care? 

There  are  a  half  score  similar  questions  which  will 
suggest  themselves  to  the  intelligent  reader,  all  of  which 
must  be  satisfactorily  answered  before  the  people  of  the 
City  of  New  York  can  be  assured  that  a  recurrence  of  con- 
viction of  innocent  people  has,  so  far  as  is  humanly  pos- 
sible, been  provided  against  in  our  Courts. 

No,  it  is  quite  clear  that  we  should  not  be  doing  our 
duty  if  we  contented  ourselves  with  a  pardon.  There 
must  be  some  legal  method  of  re-trying  the  whole  case, 
which  will  permit  these  points  to  be  thoroughly  investi 
gated.  There  still  remains  recourse  to  the  Court  of  Ap- 
peals in  Albany,  but  it  would  seem  that  such  action  would 
not  permit  investigation  of  all  the  dubious,  suspicious 
and  alarming  features  of  the  case.  The  Court  of  Appeals 
would  probably  reverse  the  decision  so  far  as  the  convic- 
tion on  the  second  count  is  concerned — it  is  absolutely 
inconceivable  that  there  should  be  any  difficulty  on  that 
point.  But  lawyers  are  of  the  opinion  that,  under  the 
present  circumstances,  nothing  would  be  done  by  the 
Court  of  Appeals  to  touch  the  conviction  on  the  first 
count  in  the  indictment. 

THE  CASE  OF  BRAND. 

The  famous  case  of  Foulke  Brand  has,  singularly 
enough,  a  remarkable  bearing  on  the  present  one.  The 


TWENTY  YEAES  IN  STATE'S  PKISON  59 

facts  in  the  Schwitofsky  case  have  been  submitted  to  every 
prominent  newspaper  and  magazine  published  in  this 
city,  and  the  contribution  has  been  uniformly  declined, 
sometimes  without  any  reason  being  given ;  sometimes  the 
reason  being  stated.  Prominent  conductors  of  newspapers 
have  told  the  present  writer  that  they  could  not  touch 
the  case  in  view  of  the  blunder  that  had  been  made  in  the 
Brand  Case.  Now  the  investigation  in  the  Schwitofsky 
matter  was  being  carried  on  long  before  the  re-opening 
of  the  Brand  case  was  mooted.  The  publicity  and  ex- 
citement connected  with  the  Brand  case  made  it  inexpe- 
dient, in  the  opinion  of  Schwitof sky's  supporters,  to  move 
in  his  case  until  that  excitement  had  died  away.  The 
District  Attorney  who  played  so  prominent  and  so  disas- 
trous a  part  in  the  Brand  case,  may  possibly  have  con- 
sidered himself  excused  from  taking  a  prominent  part  in 
the  Schwitofsky  case,  on  the  principle  involved  in  the  old 
adage  that  "the  burnt  child  dreads  the  fire."  Thus  the 
sin  of  omission,  in  the  failure  to  put  the  whole  evidence 
before  the  jury  in  the  Schwitofsky  case  was  committed  by 
the  District  Attorney,  and  the  sin  of  commission  in  the 
mortifying  blunder  committed  in  the  Brand  case  was 
committed  by  the  same  person. 

But  the  Brand  case  has  given  us  a  clue  to  the  means 
by  which  the  desired  investigation  can  be  made.  What 
Schwitof  sky's  supporters  now  hope  for  is  that  the  Gov- 
ernor of  this  State  may  be  induced  to  appoint,  a  Legal 
Commission,  with  full  power  to  re-investigate  and  exam- 
ine everybody  involved  in  the  Schwitofsky  case,  similar 
to  that  which  Governor  Dix  appointed  in  the  Brand  case* 
No  other  means  will  be  effective  to  give  the  New  York 
public  a  sense  of  security  and  a  well-founded  faith  that 
there  is  extreme  unlikelihood  of  any  innocent  man  being 
again  sentenced  to  twenty  years  imprisonment  through 
blundering,  malice,  or  perjury — all  three  factors  having 
unquestionably  been  in  operation  in  Schwitof  sky's  case. 


60  TWENTY  YEARS  IN  STATE'S  PRISON 

A  JUDICIAL,  COMMISSION — that  is  what  is  asked  for,  and 
assuredly  is  what  should  be  granted  in  the  interests  of 
Justice;  and  for  the  punishment  of  the  evil-doers  (if 
there  be  any)  in  this  case;  and  as  a  safeguard  to  the 
public  against  any  repetition  of  this  deplorable  legal 
blunder. 

WEAKNESSES  OF  OUR  SYSTEM. 

i.    "ASSIGNED"  COUNSEL. 

That  the  Schwitofsky  Case,  moreover,  displays  dan- 
gerous weakness  in  our  methods  of  dealing  with  accused 
persons  cannot  be  denied.  The  particular  weaknesses 
now  to  be  referred  to  are  such  as  can  only  be  remedied  by 
legislative  action.  Why  should  a  poverty-stricken  wretch 
not  be  in  a  position  to  have  a  just  and  equitable  trial  and 
a  proper  defense  ?  Mr.  Samuel  Untermyer,  who  did  such 
fine  work  in  trying  to  secure  justice  for  Schwitofsky  be- 
fore the  courts,  had  three  years  before  he  heard  of  the 
Schwitofsky  case  directed  public  attention  to  a  great  evil 
in  our  administration  of  criminal  law.  In  an  address 
before  the  American  Academy  of  Political  and  Social 
Science  at  Philadelphia,  on  April  9,  1910,  Mr.  Untermyer 
had  this  to  say: 

"This  brings  me  to  the  next  suggestion  I  have  to  offer  which  is  that 
there  should  be  an  office  established  as  part  of  the  machinery  of  the 
criminal  law  to  be  known  as  that  of  the  Public  Defender. 

"Unjust  convictions  among  the  poor  and  helpless  and  especially 
among  our  ignorant  foreign  population  are  far  more  frequent  than 
we  fortunates  care  to  admit.  This  is  especially  true  in  the  great  cities 
where  the  courts  are  crowded  with  business,  the  pressure  is  great  and 
justice  is  necessarily  hurriedly  administered  in  obscure  cases. 

"The  most  prolific  abuses  occur  in  what  are  known  as  'assigned' 
causes  in  which  the  defendants  and  their  families  and  friends  are  too 
poor  to  furnish  bail  or  employ  counsel.  In  those  cases  the  Court  as- 
signs counsel  who  serve  without  pay  except  that  in  some  states  a  mod- 
erate fee  is  allowed  in  capital  cases  only.  The  counsel  assigned  in 
these  cases  are  with  rare  exceptions  almost  necessarily  young  and  inex- 
perienced men  or  lawyers  without  standing  or  ability. 


TWENTY  YEARS  IN  STATE'S  PRISON  61 

"Yet  these  are  the  cases  above  all  others  in  which  the  defendants 
are  already  at  the  greatest  disadvantage  being  incarcerated,  unable 
to  go  about  to  look  up  witnesses  and  too  poor  to  employ  anyone  to  do 
so  for  them.  If  they  are  first  offenders  of  previous  good  reputation,  as 
they  generally  are  (for  experience  has  shown  that  professional  crimi- 
nals are  generally  able  to  secure  counsel),  their  prison  experience  has 
taken  the  courage  out  of  them  by  the  time  they  are  placed  on  trial. 

"They  come  to  the  bar  of  justice  crushed  in  spirit,  and  if  inno- 
cent, in  mortal  terror  of  the  law  and  resigned  to  any  fate.  Their 
assigned  counsel  whose  retained  clients  are  his  chief  concern  easily 
convinces  himself  that  he  has  done  his  duty  to  his  pauper  client  if 
che  prosecutor  will  accept  a  plea  of  guilty  to  a  lesser  form  of  crime 
or  be  content  to  recommend  a  moderate  sentence.  And  so  before  the 
poor  fellow  knows  what  has  happened  to  him  he  has  consented  on  less 
notice  and  in  less  time  than  it  requires  to  tell  the  story,  to  take  the 
advice  hurriedly  given  him  as  he  stands  quivering  at  the  bar  and  so  he 
finds  himself  on  the  way  to  prison.  There  is  hardly  a  day  in  the 
year  when  this  scene  is  not  enacted  in  the  Courts  of  our  great  cities. 
That  such  a  system  results  in  innocent  men  being  branded  and  pun- 
ished as  criminals  admits  of  no  doubt.  That  the  number  of  such  crimes 
against  justice  and  humanity  is  very  much  underestimated  is  beyond 
question  to  anyone  who  has  observed  the  system  in  operation.  The 
judges  do  what  they  can  to  minimize  the  evil  but  from  the  nature  of 
the  case  they  must  rely  on  counsel. 

"What  then  is  the  remedy? 

"The  State  has  its  Public  Prosecutor.  Why  not  its  Public  De- 
fender to  care  for  those  who  are  unable  to  defend  themselves?  It  is 
quite  as  much  to  the  interest  of  the  State  to  rescue  the  innocent  as 
to  punish  the  guilty.  There  is  no  danger  of  the  privilege  being  abused. 
Every  man  who  can  afford  to  defend  himself  will  exhaust  every  re- 
source to  select  a  champion  of  his  own  choice.  The  most  helpless 
and  unfortunate  of  all  our  citizens  should  not  to  be  forced  to  go  virtually 
undefended. 

"Nowhere  in  our  social  fabric  is  the  discrimination  between  the 
rich  and  poor  so  emphasized  to  the  average  citizen  as  at  the  bar  of 
justice.  Nowhere  should  it  be  less.  In  an  ideal  state  of  government 
the  lines  would  be  made  to  disappear  here  of  all  places.  Money  secures 
the  ablest  and  most  adroit  Counsel  whose  characters  and  reputations 
are  powerful  factors  in  their  client's  cause.  Evidence  can  be  gathered 
from  every  source  and  all  the  legitimate  expedients  of  the  law  availed 
of.  The  poor  must  be  content  to  forego  all  these  advantages  but  surely 
the  State  should  not  take  an  unfair  advantage  of  his  helplessness" 

It  would  be  idle  for  me  to  add  one  word  to  the  forcible 
and  just  statement  of  this  eminent  man,  except  to  say  that 
where  Mr.  Untermyer  speaks  of  innocent  men  being 


62 

branded  and  punished  as  criminals,  he  is  stating  not  mere- 
ly a  presumption,  but  a  fact.  The  present  writer  can  recall 
a  number  of  such  cases  as  having  come  under  his  notice. 
Out  of  this  number,  some  stand  out  in  his  memory  very 
clearly.  In  one  case  the  victim  had  actually  been  sen- 
tenced to  five  years  in  Sing  Sing,  when  the  present  writer 
intervened  and  made  strong  representations  to  the  Judge, 
who  being  a  humane,  good-hearted  and  reasonable  man 
besides  being  a  judge,  consented  to  grant  the  necessary 
'stay  of  commitment'  to  jail  after  the  sentence,  and 
thus  enabled  the  writer  to  produce — as  the  result  of  a 
cable  inquiry  made  in  Europe — satisfactory  evidence  of 
a  miscarriage  of  justice.  Acting  on  Ms  own  initiative,  as 
soon  as  this  evidence  was  placed  before  him,  the  judge 
spoken  of  directed  a  new  trial  on  the  ground  of  newly 
discovered  evidence,  and  within  half  an  hour  of  the  open- 
ing of  court  the  fortunate  victim  of  the  error  was  free. 

In  another  case  a  man,  a  foreigner  with  but  slight 
knowledge  of  English,  who  had  committed  no  crime  known 
to  our  Code,  had  been  recorded  as  having  pleaded  guilty 
to  a  felony,  and  stood  in  danger  of  a  sentence  of  two 
years'  imprisonment  in  the  State  prison.  The  writer 
represented  to  the  Judge  in  this  case  that  the  accused  de- 
clared he  had  not  intended  to  plead  guilty  and  had  not 
pleaded  guilty,  that  the  record  of  a  plea  of  guilty  was  an 
error  caused  either  by  his  misunderstanding  what  was 
asked  him,  or  by  the  court  officers  having  misunderstood 
what  he  had  replied.  Moreover,  a  hurried  investigation 
had  shown  that  no  crime  had  been  committed.  In  this 
case  the  Judge,  one  of  the  most  humane  and  upright  men 
on  the  bench,  at  once  ordered  that  the  plea  of  guilty  be 
withdrawn,  and  that  the  man  be  placed  for  trial  within  a 
few  days.  The  trial  took  about  an  hour  and  a  half;  the 
jury  retired  for  ten  minutes  and  brought  in  a  verdict  of 
acquittal.  These  two,  among  a  number  of  cases  of  which 
the  writer  has  knowledge,  are  quoted  for  the  reason  that 


TWENTY  YEAES  IN  STATE'S  PKISON  63 

rectification  of  the  first  error  occurred  under  the  regime 
of  District  Attorney  Jerome,  and  had  no  unpleasant 
result  on  the  relations  between  the  writer  and  the  District 
Attorney's  Office  at  that  time.  The  course  taken  in  the 
second  case,  occurring  under  Mr.  Whitman's  reign,  en- 
countered violent  opposition  from  the  District  Attorney's 
Office,  and  formal  charge  is  said  to  have  been  made  by 
Whitman  himself  that  the  writer  had  been  bribed  to  inter- 
vene and  had  interfered  unjustifiably  with  the  due  course 
of  justice ! 

Whether  the  remedy  suggested  by  Mr.  Untermyer  is 
practicable  is  a  question  that  is  debatable.  The  writer 
has  always  favored  the  course  of  engaging  well-qualified 
counsel  by  an  annual  retaining  fee  paid  by  the  various 
organizations,  Jewish,  Protestant,  Catholic  and  Colored, 
which  maintain  agents  to  work  among  prisoners  of  their 
special  religions  or  races.  The  obvious  objection  to 
the  proposal  of  a  State  Defender  that  a  great  deal  of 
waste  of  the  State's  or  City's  time  and  money  might  be 
brought  about  by  applications  from  defendants  who  are 
unquestionably  guilty  could  be  overcome  in  the  alterna- 
tive proposal  by  the  fact  that  counsel  engaged  by  private 
benevolence  would  only  intervene  in  cases  where  previous 
investigation  by  benevolent  workers  had  shown  that  there 
were  grounds  which  justified,  that  intervention.  But 
whatever  may  be  the  differences  of  opinion  on  this  point, 
no  worker  in  the  prisons  or  courts  can  have  failed  to  be 
haunted  by  a  sense  of  injustice  unwittingly  done  in  num- 
bers of  cases — and  not  merely  in  cases  where  there  is 
absence  of  guilt,  but  in  cases  where  the  degree  of  guilt 
does  not  justify  the  severity  of  the  sentence  imposed. 


64  TWENTY  YEARS  IN  STATE'S  PRISON 

WEAKNESSES  OF  OUR  SYSTEM. 
IT.     "SECOND  OFFENSES." 

Another  instance  where  legislative  enactment  is  neces- 
sary to  correct  a  grievous  wrong  done  with  the  approval 
of  the  Statute  Book  is  in  our  present  positively  infamous 
practice  in  cases  of  "second  offense."  Section  1940  of 
our  Penal  Law  provides  that  a  person  who  has  been  pre- 
viously convicted  within  this  State  of  a  misdemeanor,  and 
who  is  afterwards  convicted  of  a  felony,  must  be  sen- 
tenced to  imprisonment  for  the  longest  term  prescribed 
upon  conviction  for  the  felony.  The  following  section 
provides  that  a  person,  who  after  having  been  convicted 
within  this  State  of  a  felony,  commits  any  crime  within 
this  State,  is  punishable  upon  conviction  of  the  second 
offense,  by  a  term  not  less  than  the  longest  term,  nor 
more  than  twice  the  longest  term  prescribed  upon  a  first 
conviction. 

This  is  not  the  place  to  enter  into  an  exposition  of  the 
absolutely  preposterous  and  brutal  nature  of  these  pro- 
visions. Fortunately,  the  very  unreasonableness  of  their 
severity  acts  as  a  deterrent  against  their  application,  for 
if  they  were  applied  uniformly  and  impartially  our 
prisons  would  be  filled  with  men  committed  for  not  less 
than  ten  years  and  often  for  the  period  of  their  whole 
lives.  Aside  from  the  question  of  the  capricious  nature 
of  the  application  of  these  Sections,  there  is  the  grave  ob- 
jection that  the  practice  has  arisen,  when  a  person  is 
indicted  for  the  commission  of  a  second  offense,  of  re- 
citing in  the  indictment  all  particulars  of  previous  of- 
fenses and,  at  the  trial,  before  the  prosecution  closes  its 
case,  of  adducing  evidence  to  the  effect  that  the  person 
has  previously  been  convicted.  This,  in  spite  of  all  the 
warnings  of  counsel  for  the  defense,  or  of  the  Court,  in- 
evitably sets  up  a  presumption  of  guilt  in  the  minds  of 


TWENTY  YEARS  IN  STATE'S  PRISON  65 

the  jury,  which  must  have  a  most  deplorable  effect  on 
their  verdict.  Who,  possessing  any  knowledge  of  human 
nature,  will,  on  reading  the  'People's  Story'  in  the 
Schwitofsky  Case,  fail  to  perceive  that  before  the  jury 
had  heard  the  defense  a  presumption  of  the  guilt  of 
Schwitofsky  had  already  been  set  up,  which  presumption 
had  a  most  prejudicial  result  on  the  jury's  mental  attitude, 
towards  his  loud  protestations  of  his  innocence?  Where 
the  man  was  in  reality  most  truthful  and  should  have 
been  most  convincing,  he  was  regarded,  in  all  probability, 
as  being  most  crafty  and  most  unreliable. 

During  the  last  session  of  our  State  Legislature  a 
bill  partially,  but  only  partially,  remedying  this  was  in- 
troduced and  was  passed  by  the  Assembly,  but  it  was 
among  the  many  "slaughtered  innocents"  foully  done 
to  death  by  the  Senate  during  the  last  days  of  its  session, 
when  the  important  question  of  the  whitewashing  of 
former  Senator  Stillwell  was  occupying  the  attention  of 
that  august  body  to  the  exclusion  of  all  other  subjects  of 
deliberation. 

That  the  average  citizen  is  indisposed  to  grant  justice 
to  a  man  who  has  previously  been  proven  to  have  done 
wrong  is  a  matter  of  common  experience.  Time  after 
time  when  the  writer  has  stated  the  facts  in  Schwitofsky 's 
case  to  decent  citizens  of  fully  average  intelligence  and 
humanity,  he  has  met  with  the  reply,  "Oh  well,  the 
fellow's  an  old  convict;  I  suppose  no  great  harm  has  been 
done!"  This  feeling  is  wide-spread,  and  perhaps  is  the 
natural  first  impulse  in  the  mind  of  an  honest  man.  But 
let  it  be  stated  here  that  the  very  foundation  of  our  social 
system,  and  our  freedom  as  self-governing  persons  are 
more  seriously  jeopardized  by  this  attitude  on  the  part  of 
the  general  public  than  ever  they  were  by  the  action  of 
foreign  tyrants.  The  late  Mayor  Gaynor  on  one  occasion 
made  one  of  his  shrewd  and  illuminating  hits  by  pointing 
out  this  danger. 


66  TWENTY  YEARS  IN  STATE'S  PRISON 

We  have,  let  us  say,  some  two  hundred  plain-clothes 
men  in  our  police  department,  to  whom  is  entrusted  the 
important  duty  of  hunting  down  and  arresting  offenders 
against  person  and  property  who  have  escaped  the  hands 
or  notice  of  the  uniformed  police  force.  Eecent  revela- 
tions must  have  convinced  us  that  in  New  York,  as  in 
London,  Paris,  Berlin  and  elsewhere,  there  is  an  ever- 
present  danger  of  a  combination  for  evil  between  detec- 
tives and  criminals — between  the  wolves  and  the  watch- 
dogs. 

There  are  perhaps  twenty-thousand  discharged  or  par- 
oled convicts  at  this  moment  in  New  York.  If  it  be  made 
an  easy  matter  for  a  rogue  in  uniform  to  convict  a  pre- 
vious offender  of  the  commission  of  further  crimes  (of 
which  he  is  in  reality  innocent)  because  public  sentiment 
and  legislative  enactment  do  not  demand  the  convincing 
evidence,  nor  insist  upon  the  just  safeguards  that  are  re- 
quired in  the  case  of  a  first  offender  then  the  result  will 
be  threateningly  dangerous  to  the  community. 

A  few  plain-clothes  men  could  hold  in  terror  an  army 
of  twenty  thousand  slaves  and  force  obedience  to  their 
every  behest  under  pain  of  imprisonment,  on  an  easily 
trumped-up  charge,  for  twenty  years  or  for  life.  Pov- 
erty-stricken and  friendless,  with  no  defense  worthy  of 
the  name,  no  consideration  on  the  part  of  district  at- 
torney, judge  or  jury,  the  hapless  wretch  would  have  as 
much  chance  of  escaping  the  toils  as  had  Schwitofsky. 

There  has  recently  occurred  a  well-known  case  in 
which  it  was  shown  to  the  satisfaction  of  a  jury,  that  a 
highly-placed  police  officer  simply  directed  that  certain 
former  convicts  remove  an  obnoxious  person  from  his 
path.  He  had  it  in  his  power,  if  these,  or  any  others  des- 
ignated, refused  to  obey,  to  punish  them  with  a  severity 
which  not  even  the  old  Lettres  de  Cachet  of  the  times 
preceding  the  French  Eevolution  could  surpass. 

Very  little  reflection  is  needed  to  convince  the  thought- 


TWENTY  YEARS  IN  STATE'S  PRISON  67 

ful  citizen  that  not  only  it  is  proper  that  the  man  who  has 
committed  a  crime  and  has  been  punished  for  it  should 
receive  every  protection  and  encouragement  to  avoid  do- 
ing ill  and  continue  doing  well,  on  the  grounds  of  religion 
and  humanity,  but  that  any  opposite  attitude  on  the  part 
of  the  general  public  menaces  the  very  existence  of  our 
social  organization. 

Instances  of  mistaken  identity  leading  to  condemna- 
tion to  death  are  not  unknown.  The  well-known  case  of 
Adolph  Beck,  of  London,  where  the  man  was  with  diffi- 
culty saved  from  the  gallows  and  where  it  was  shown 
that  the  identification  was  utterly  mistaken,  must  still 
be  within  the  reader's  recollection.  Last  year  Sir  Arthur 
Conan  Doyle,  the  famous  writer,  published  "The  Case  of 
Oscar  Slater"  who  in  May,  1909,  was  sentenced  to  death 
in  the  High  Court  at  Edinburgh,  and  who,  as  Doyle 
shows,  is  the  victim  in  a  case  of  mistaken  identity.  He 
is  still  in  jail  in  Scotland,  four  years  having  elapsed  since 
the  Secretary  of  State  for  Scotland  commuted  the  capital 
sentence  to  that  of  imprisonment  for  life. 

In  the  course  of  his  statement  in  defense  of  Oscar 
Slater  Sir  Arthur  Conan  Doyle  tells  us  that  Slater  was  a 
gambler,  a  "follower  of  the  races"  by  profession;  and 
that  he  had  been  living  in  Glasgow  with  a  woman  who 
was  not  his  wife.  For  these  two  reasons  Doyle  very 
justly  contends  that  "Oscar  Slater  was  a  blackguard " 
a  characterization  severe,  but  not  to  be  refuted.  Then 
Sir  Arthur  makes  the  following  curious  observation : 

"One  cannot  feel  the  same  burning  sense  of  injustice 
over  the  matter.  And  yet  I  trust  for  the  sake  of  our 
character,  not  only  for  justice,  but  for  intelligence,  that 
the  judgment  may  in  some  way  be  reconsidered,  and  the 
man's  present  punishment  allowed  to  atone  for  those 
irregularities  of  life  which  helped  to  make  his  convic- 
tion possible." 

The  writer  is  a  great  admirer  of  Conan  Doyle  and  re- 


68  TWENTY  YEAES  IN  STATE'S  PEISON 

gards  him  as  one  of  the  leading  English  litterateurs  of 
our  day,  but  with  all  due  respect  to  that  eminent  gentle- 
man, it  may  be  fairly  said  that  no  more  mischievous  doc- 
trine was  ever  uttered.  Slater  is  innocent  of  the  crime  of 
which  he  was  convicted,  was  put  in  jeopardy  of  his  life, 
and  has  been  suffering  for  four  years  imprisonment  for 
a  crime  which  he  did  not  commit.  His  life  previously 
was  irregular,  but  the  fact  that  he  was  a  book-maker  and 
gambler  does  not  constitute  him  a  criminal  under  the 
English  law,  nor  does  the  fact  that  he  was  living  in  mere- 
tricious relations  with  a  woman  not  his  wife  constitute 
a  felony  under  the  English  law.  If  these  two  irregular- 
ities were  proven  against  him  in  an  English  court  of  law, 
no  imprisonment  could  be  inflicted  by  way  of  punishment. 
Sir  Arthur,  not  apparently  realizing  the  prevalence  and 
unwisdom  of  the  dangerous  and  threatening  public  senti- 
ment that  a  man  whose  character  is  not  good  may  be 
punished  for  a  crime  of  which  he  is  innocent  and  may  not 
be  entitled  to  pity,  makes  the  plea,  that  his  five  years' 
imprisonment  may  be  regarded  as  atonement.  Atone- 
ment! For  what?  For  the  blunder  of  the  Scotch  court 
of  law?  If  the  man  be  innocent,  as  Sir  Arthur  maintains 
he  is,  and  as  seems  probable,  the  irregularities  of  his 
former  life  have  no  right  to  be  considered.  The  injustice 
done  to  him  is  just  as  great  as  if  he  previously  led  a 
regular  life,  the  danger  to  the  community  is  much  greater, 
and  the  punishment  to  the  victim  much  more  severe. 

A  man  of  previously  decent  life  condemned  through  a 
judicial  error  to  imprisonment  is  buoyed  up  by  the  knowl- 
edge of  his  own  worth  and  by  the  certitude  of  public  sym- 
pathy in  amplest  measure  when  his  innocence  is  estab- 
lished. But  one  whose  life  has  not  been  spotless  is 
robbed  by  such  an  attitude  as  Sir  A.  Conan  Doyle  assumes 
of  even  that  remote  consolation. 

It  behooves  society  to  be  just  as  careful  of  the  liberty 
and  rights  of  an  old  offender  as  of  those  of  one  never 


TWENTY  YEARS  IN  STATE'S  PRISON  69 

previously  accused.  That  is  the  Moral  Law.  It  be- 
hooves Society,  in  self-protection,  to  see  that  the  in- 
justice of  the  unjust  and  the  iniquity  of  the  evil-doer  be 
not  emulated  by  the  defenders  of  society.  That  is  very 
good  Social  Law. 

The  sooner  our  present  infamous  method  of  dealing 
with  second  offenders  be  abolished,  the  better  for  jus- 
tice and  righteousness,  for  the  reformation  of  the  wrong- 
doer and  for  the  protection  of  our  whole  fabric  of  civili- 
sation. 

WEAKNESSES   OF   OUE   SYSTEM. 
III.       APPEAL    TIME    LIMIT. 

Where  is  the  justice  or  common-sense  in  denying  a  man 
the  opportunity  of  proving  his  innocence  in  a  higher 
court,  and  of  appealing  from  the  errors  or  lapses  of  the 
trial  court  in  cases  where  lack  of  means,  neglect  of  coun- 
sel, or  absence  of  witnesses  prevent  him  from  being  ready 
to  present  his  case  within  twelve  months  from  the  date 
of  sentence?  Where  is  the  equity  or  common  human 
justice  in  refusing  to  consider  newly  discovered  evi- 
dence if  accident  dictates  that  that  evidence  can  only 
be  procurable  in  the  thirteenth  month  after  the  date  of 
the  sentence? 

Even  the  most  heedless  observer  will  at  once  realise 
that  there  exists  a  necessity  for  placing  some  term  to  the 
period  in  which  a  case  already  adjudged  may  again  trou- 
ble the  courts.  That  important  element  being  fully  rec- 
ognized, it  is  arguable  that  twelve  months  is  altogether 
too  short  a  period,  and  that  the  time  limit  in  certain 
classes  of  cases  should  remain  unfixed.  The  right  to 
appeal  in  cases  where  the  appeal  depends  on  argument 
of  faulty  legal  methods  or  on  considerations  of  differing 
opinion  as  to  the  intent  and  force  of  an  enactment  may 


70  TWENTY  YEAES  IN  STATE'S  PEISON 

justly  be  limited  to  twelve  months.  But  so  compara- 
tively brief  a  term  in  cases  where  new  and  striking  facts 
which  either  by  the  neglect  of  counsel  or  through  the 
want  of  knowledge  and  necessary  opportunity  for  secur- 
ing evidence  for  the  defense  were  not  produced  at  the 
trial,  is  a  grievous  injustice  to  the  accused,  especially 
where  the  failure  to  produce  the  favorable  evidence  is 
due  to  poverty. 

The  hardship  inflicted  by  the  rigid  time  limit  is 
specially  oppressive  in  cases  where  perjury  may  be 
proven — as  was  the  case  with  Schwitofsky.  The  later 
facts  with  respect  to  Dale 's  career  only  transpired  about 
eighteen  months  after  the  trial.  Had  it  been  possible  to 
place  before  the  Trial  Judge  or  the  Appellate  Division 
the  facts  with  respect  to  the  charge  of  Jack  Young  against 
Dale,  the  forfeiture  of  bail,  the  varying  pleas  and  the 
suicide  of  Dale,  would  it  not  have  placed  the  appeal  of 
Schwitofsky  on  a  different  and  stronger  footing!  It 
may  be  suggested  that  the  time-limit  for  appeal,  which  is 
expedient  and  useful  in  certain  classes  of  cases,  should 
not  be  applicable  in  that  minority  of  cases  in  which  the 
grounds  urged  do  not  depend  on  legal  points,  but  that 
the  Courts  should  be  in  a  position  to  take  cognizance  of 
newly  discovered  evidence  without  respect  to  any  time 
limit. 

It  has  been  pointed  out  to  the  writer  that  the  pardoning 
power  is  vested  in  the  Governor's  hands,  for  the  very 
purpose  of  meeting  such  cases.  But  where  a  man 's  inno- 
cence can  be  shown,  a  pardon  does  not  meet  the  require- 
ments of  the  case.  A  pardon  does  not  rehabilitate  a 
man  and  it  is  a  matter  of  current  comment  that  it  is 
ludicrous  to  pardon  a  man  for  a  crime  that  he  never  com- 
mitted. It  is  quite  conceivable,  also,  that  there  may  arise 
cases  in  which  the  new  facts,  which  conclusively  prove 
the  innocence  of  the  accused,  only  see  the  light  after  the 
sentence  has  been  wholly  served.  Should  not  a  citizen 


TWENTY  YEAES  IX  STATE'S  PRISON  71 

so  wronged  have  the  right  to  such  reparation  as  is 
humanly  possible  at  the  hands  of  those  who,  with  the  best 
intentions,  of  course,  did  him  the  wrong?  In  other 
words,  in  such  instances,  only  the  Courts  can  set  right  the 
wrong  which  the  Courts  committed. 


72  TWENTY  YEARS  IN  STATE'S  PRISON 


Cbaplatn'0  Ston>. 


He  certainly  was  not  an  attractive-looking  person  as  I 
peered  into  his  cell  in  the  Annex  of  the  Tombs  Prison 
(where  people  charged  with  misdemeanors  are  placed) 
on  that  afternoon,  in  February,  1911.  At  first  view  I  did 
not  take  him  for  a  Hebrew,  but  judged  him  to  be  a  Slav, 
and  was  passing  on,  when  he  accosted  me.  He  asked  if  I 
were  the  new  Rabbi  at  the  Tombs  and  expressed  his  pro- 
found regret  that  my  predecessor,  who  was  a  friend  of  his 
and  had  formerly  taken  a  great  interest  in  him,  was  now 
deceased.  He  said  that  his  name  was  ALFKED  SCHWITOF- 
SKY,  and  that  he  was  entirely  innocent  of  any  crime.  The 
charge  against  him  was  "Unlawful  Entry,"  and  all  he 
knew  was  that  he  had  been  taken  out  of  bed  at  midnight  a 
few  days  before  by  a  plain-clothes  officer  who  told  him 
that  he  was  accused  of  having  unlawfully  entered  some 
building.  He  had  told  the  officer  that  he  was  unconscious 
of  any  wrong-doing  and  that  he  was  perfectly  willing  to 
go  with  him  at  once  and  have  the  matter  over,  because  he 
was  working  and  had  to  be  on  his  job  early  the  next  morn- 
ing. He  was  taken  to  a  place  in  45th  Street  by  two  plain- 
clothes  officers,  one  of  whom  remained  on  the  floor  below 
with  him  while  the  second  went  upstairs.  The  second 
man,  returning,  took  him  upstairs  with  him,  leaving  the 
other  officer  below.  He  was  shown  into  a  room  where  sat  a 
man  whom  he  had  never  seen  before,  and  who,  turning 
up  the  gas  jet  looked  at  him  and  said,  "No,  I  don't  think 
he  is  the  man."  The  officer  with  him  nodded  meaningly 
to  the  stranger,  and  the  latter  then  said,  "Well,  let  me 
see  his  hands."  The  stranger  examined  his  wrists  and 


TWENTY  YEARS  IN  STATE'S  PRISON  73 

said,  ''Well,  perhaps  he  is  the  man.  I  guess  you  had 
better  hold  him."  That  was  all  he,  Schwitofsky,  know 
of  the  matter.  He  had  no  friends  and  no  means  to  em- 
ploy counsel. 

Asked  why  he  thought  he  had  been  arrested,  he  replied 
that  he  had  been  in  the  Penitentiary,  and  that  since  his 
release  he  had  been  working  steadily.  He  had  recently 
met  a  former  inmate  of  the  Penitentiary  who  had  been 
in  the  same  workroom  with  him,  and  this  man  had  asked 
him  what  he  was  now  doing.  He  had  replied  that  he  was 
earning  money  in  an  honest  way,  and  his  former  prison- 
friend  had  pooh-poohed  his  honesty  and  pointed  out  how 
easy  it  was  to  make  as  much  in  a  night  as  he  was  earning 
in  a  month.  This  man  had  spoken  to  him  several  times 
and  tried  to  induce  him  to  go  on  a  'job'  with  him.  He, 
Schwitofsky,  had  complained  about  it  to  the  plain-clothes 
men,  and  they  had  suggested  to  him  that  he  make  a  special 
appointment  with  his  prison  acquaintance  and  let  them 
overhear  the  conversation.  He  had  made  appointments, 
twice,  but  the  other  man  was  apparently  suspicious  and 
had  failed  to  keep  either  appointment.  He  now  suspected 
that  his  prison-acquaintance  was  a  'stool-pigeon'  and  that 
the  police,  having  failed  to  entrap  him,  were  determined 
to  arrest  him  on  a  charge  anyhow. 

Schwitofsky 's  story  was  one  of  a  type  that  I  frequently 
listen  to,  and  I  paid  very  little  attention  to  him  or  his 
narrative. 

When,  however,  I  had  completed  my  round  for  the 
afternoon,  I  met  Mr.  John  Hanley,  the  deputy  warden  of 
the  Tombs — than  whom  I  know  no  more  efficient,  kind- 
ly or  conscientious  employe  of  the  Department  of  Cor- 
rection. Hanley  said  to  me,  "Doctor,  did  you  see  Ger- 
ber?"  I  replied,  "No,  I  haven't  seen  any  man  of  that 
name."  He  said,  "He's  in  the  Annex,"  and  described 
his  personal  appearance.  I  said,  "I  spoke  with  a  man 
of  that  description  who  said  his  name  was  Schwitofsky." 


74  TWENTY  YEAES  IX  STATE'S  PEISOX 

"Well,'  said  Hanley,  'I  believe  he  is  known  by  that  name 
too."  Hanley  continued,  "Now,  Doctor,  I  never  knew  a 
man  in  my  life  who  tried  so  hard  'to  make  good'  as  this 
one  did.  He  attempted  suicide  in  his  cell  about  two  or 
three  years  ago,  and  was  so  nearly  succeeding  that  it  was 
only  by  a  miracle  that  his  life  was  saved.  He  was  sent 
to  Matteawan,  and  on  being  discharged  from  there,  was 
released  on  a  suspended  sentence.  He  used  to  come  to 
see  me  very  frequently,  just  because  he  was  grateful 
and  friendly  to  me.  He  would  even  come  to  me  to  show 
me  a  new  suit  of  clothes  that  he  had  purchased,  and  to 
tell  me  with  a  look  of  joy  on  his  face,  that  he  was  engaged 
to  be  married.  I  should  be  very  glad  if  you  could  do  any- 
thing to  help  him." 

Now,  I  have  the  greatest  regard  for  the  opinion  of 
Mr.  Hanley,  and  as  a  result  of  his  statement  I  went  into 
the  office  of  the  chief  clerk  of  Special  Sessions,  and  there, 
in  the  presence  of  one  of  the  judges,  whose  name  I  now 
forget,  repeated  the  story  Schwitofsky  told  me.  I  apolo- 
gized for  speaking  about  it  before  one  of  the  judges  who 
might  sit  in  trial  on  the  man,  but  his  Honor  laughingly 
said,  "Well,  consider  me  deaf  or  absent.  Go  ahead." 
When  I  had  briefly  outlined  the  man's  story  I  made  the 
request  that  good  counsel  should  be  assigned  to  him.  A 
memorandum  was  made  of  the  name,  and  a  promise  was 
made  to  me  that  his  case  would  certainly  receive  careful 
attention. 

Next  day  I  went  into  the  Court  to  ascertain  what  had 
happened  in  the  case,  and  was  informed  that,  at  the  re- 
quest of  the  District  Attorney's  Office,  Schwitofsky  was 
transferred  to  the  Court  of  General  Sessions.  The  next 
time  I  saw  Schwitofsky  he  was  in  the  main  building  of  the 
Tombs,  and  he  said  that  he  was  now  charged  with  bur- 
glary in  the  second  degree,  but  he  still  maintained  his 
entire  innocence  of  the  transaction  which  led  to  the 
charge. 


TWENTY  YEARS  IN  STATE'S  PEISON  75 

On  the  same  tier  in  the  Tombs  with  him  was  a  young 
fellow  named  LEO  GELSKY.  Gelsky  had  told  me  a  story 
to  which  I  had  not  listened  with  any  great  interest,  as  it 
involved  degenerate  sexual  practices.  Later  on  I  re- 
ceived the  following  letter  and  confession  from  Gelsky, 
which  was  practically  the  story  he  had  told  me  orally, 
in  greater  detail. 

"Rev.  Dr.  Goldstein  : — Your  sermon  of  February  llth  has  made  such 
an  impression  on  me  that  my  conscience  will  not  leave  me  in  peace. 
There  has  been  a  great  wrong  done  an  innocent  man,  and  I'm  the  only 
person  who  can  explain.  I  was  made  a  party  to  a  'Frame-up.'  I  will 
tell  you.  Dr.  Goldstein,  as  my  spiritual  adviser,  the  true  case. 

"The  beginning  of  January,  1911,  while  I  was  in  a  'penny  arcade'  on 
Fourteenth  Street,  a  man  accosted  me,  and  after  finding  out  about 
my  circumstances,  he  gave  me  carfare  and  asked  me  to  meet  him  at 
8  P.  M.  at  the  corner  of  Forty-fifth  Street  and  Sixth  Avenue.  He  told 
me  he  could  get  me  a  good  job.  At  the  appointed  time  I  met  this  man, 
and  he  invited  me  to  his  house.  (Here  follow  details  of  an  inde- 
scribable assault  upon  the  visitor  by  the  owner  of  the  house.) 

"He  said  he  would  pay  all  doctor's  expenses  and  fix  me  up.  He 
went  out  and  came  back  with  a  man  whom  he  addressed  as  Gates,  and 
who  addressed  him  as  Grace.  Mr.  Grace  then  asked  Mr.  Gates  to  band- 
age me  up,  which  he  did.  When  Mr.  Gates  was  through  Mr.  Grace 
begged  me  to  put  my  coat  on,  and  after  pressing  a  five  dollar  bill  in 
my  hand  told  me  that  if  I  came  to-morrow  he  would  give  me  $100, 
which  he  thought  would  cover  the  doctor's  expenses.  I  didn't  like  the 
arrangement,  and  I  told  Mr.  Grace  so,  and  asked  him  to  give  it  to 
me  now,  and  he  said  that  he  did  not  have  that  much  money  in  the  place, 
but  he  would  give  me  a  note  to  be  collected  to-morrow.  I  accepted  the 
note.  He  also  informed  a  blonde  girl  whom  he  called  from  upstairs  and 
told  her  to  show  me  out. 

"The  next  morning  I  called  at  Mr.  Grace's  house,  and  he  put  me 
off  until  the  following  day.  This  Mr.  Grace,  who  afterward  became 
known  to  me  as  Mr.  Dale,  kept  this  up  for  about  two  weeks.  I  finally 
decided  to  change  my  tactics.  I  went  to  see  a  fellow  whom  I  have  told 
of  this ;  wrote  a  letter  and  gave  it  to  him  with  the  note  which  Mr. 
Dale  gave  me,  and  asked  him  to  go  to  his  house  and  collect  the  money. 
I  went  with  him  as  far  as  the  house  and  waited  outside. 

"About  five  minutes  afterward  I  saw  my  friend  coming  out  of  the 
house  and  calling  Mr.  Dale,  who  was  following  him,  all  kinds  of  names. 
Then  Mr.  Dale  started  to  holler  'Stop  thief,'  and  a  great  crowd  gath- 
ered. Mr.  Dale  also  said  to  the  people  that  my  friend  had  a  revolver, 
but  several  of  the  people  after  searching  him  said  that  he  did  not  have 
any.  Mr.  Dale  accosted  me  and  said :  'How  could  you  expose  me  that 


76  TWENTY  YEAES  IN  STATE'S  PEISON 

way  in  my  own  neighborhood !'  My  friend  was  relating  to  the  crowd 
the  whole  story  and  demanding  Mr.  Dale's  arrest,  but  Mr.  Dale  per- 
suaded the  crowd  to  let  my  friend  go.  We  then  took  a  car  and  left 
the  neighborhood.  On  the  car  he  told  me  that  Mr.  Dale  took  both  the 
letter  and  the  note,  and  refused  to  pay. 

"The  following  Saturday  I  met  Mr.  Dale  on  Fourteenth  Street 
again  and  he  said  that  his  name  must  be  cleared  regardless  of  cost, 
as  he  could  not  stand  the  exposure  he  received  in  his  neighborhood. 
He  also  told  me  that  the  letter  he  received  he  gave  to  a  detective,  and 
he  said  if  I  wrote  any  more  he  would  have  me  arrested.  I  wrote  another 
letter,  sent  it  by  a  boy  whom  I  promised  a  quarter  of  a  dollar,  and  was 
immediately  arrested.  I  was  taken  to  his  house  and  then  to  Police 
Headquarters.  From  there  I  was  taken  to  Fifty-seventh  Street  and 
arraigned  before  Magistrate  O'Connor.  Then  I  was  taken  to  a  side  room 
by  a  detective  by  the  name  of  Dungate,  who  told  me  that  they've  got 
a  fellow  whom  they  could  connect  with  the  crime,  and  showed  me  a 
picture  which  he  told  me  Mr.  Dale  identified  in  the  Rogue's  Gallery. 
As  I  could  not  identify  the  picture,  he  told  me  to  say  so  anyhow,  and 
if  I  would  state  in  court  something  he  will  tell  me  he  will  see  that  I  am 
discharged;  otherwise  I  would  get  fifteen  years.  I  was  frightened  and 
said  'yes'  to  everything  they  asked  me.  Tuesday  when  I  returned  from 
court,  the  officer  beat  me  on  the  way  to  the  lockup,  as  I  said  I  could 
not  identify  anyone  else  but  the  right  man.  Fearing  any  more  beating  I 
did  what  they  asked  me  to. 

"This  is  the  true  and  exact  story  how  everything  happened. 

"Rev.  Dr.  Goldstein,  I  am  keeping  to  my  cell,  as  I've  not  the  cour- 
age to  tell  this  unfortunate  how  he  got  into  trouble.  Kindly  submit  to 
him  the  real  story  of  the  case,  as  I  know  he  does  not  know  anything 
about  it.  His  name  must  be  Alfred  Sickofsky,  or  something  like  that." 

I  looked  up  the  records  of  both  cases  in  the  General 
Sessions  Court  office  and  found  that  in  both  the  complain- 
ant was  the  same  person — Theodore  B.  Dale  of  71  West 
45th  Street.  This  fact  was  in  itself  enough  to  attract 
my  attention,  and  I  made  further  inquiry  from  both 
accused,  into  the  facts  of  the  case  as  they  told  them.  I 
noted  that  both  of  them  were  on  the  same  tier  in  the 
Tombs,  in  cells  not  far  from  each  other.  This,  of  course, 
was  a  suspicious  fact  and  suggested  that  there  might  be 
collusion  between  them  in  their  stories.  I  went  to  Gel- 
sky's  cell  and  I  said,  "Do  you  know  the  man  in  Cell  No. 

—."    He   said,   "No,   I   don't  know  him."    I   said, 
"Have  you  never  seen  him  in  your  life  before?"  Gelsky 


TWENTY  YEARS  IX  STATE'S  PRISOX  77 

replied,  "Not  to  my  knowledge."  "Have  you  ever  seen 
his  portrait?",  I  asked.  Gelsky  said,  "  I  don't  know  the 
man."  I  went  to  Schwitofsky  and  said,  "Do  you  know 
Leo  Gelsky?"  He  replied,  "No."  I  said,  "Now, 
Schwitofsky,  you  want  me  to  help  you,  and  you  have  been 
telling  me  lies.  You  are  perfectly  welcome  to  do  with- 
out my  help,  but  if  you  want  my  help  you  cannot  expect 
it  if  I  find  you  trying  to  deceive  me. ' '  He  said,  1 1 1  have 
not  told  you  lies,  Doctor."  "Well,'  I  said,  'if  you  don't 

know  Gelsky,  who  is  that  boy  in  Cell  No. !"  He 

said,  "That's  Hoffman." 

I  went  back  to  Gelsky 's  cell  and  said,  "Gelsky,  do  you 
know  a  man  named  Hoffman!"  Gelsky  said,  "No."  I 
said,  "Gelsky,  you  are  asking  me  to  help  you,  and  you 
are  telling  me  lies.  It  is  no  earthly  use  trying  to  deceive 
me,  because  I  shall  drop  your  case  at  once  when  I  am  cer- 
tain that  you  are  lying  to  me.  Now,  do  you  know  a  man 
named  Hoffman?"  He  said,  "No."  "Well,"  I  then 
said,  "Why  does  Schwitofsky,  about  whom  you  wrote  to 
me  as  the  man  who  is  innocent,  and  who  is  charged 
with  being  your  accomplice,  call  you  Hoffman?"  "Oh," 
he  said  with  a  smile,  "I  remember  now.  I  have  been 
called  'Hoffman,'  having  been  mistaken  for  a  man  of 
that  name,  but  I  had  forgotten  that  fact  when  you  asked 
me." 

It  was  quite  clear  that  there  was  something  very  sus- 
picious about  the  pretext  of  both  men  that  they  were 
unacquainted  with  each  other,  and  I  determined  to  move 
in  the  case  with  great  caution. 

I  may  remark,  however,  that  the  fact  that  there  were 
discrepancies  in  their  narratives  and  that  they  were 
obviously  telling  me  falsehoods  in  minor  particulars  was 
not  in  itself  conclusive.  Men  of  their  type  cannot  tell 
the  truth  even  when  they  wish  to,  and  had  there  really 
been  collusion  and  agreement  between  them  there  would 
have  been  no  discrepancies  in  their  statements. 


78 

I  took  the  course  of  speaking  to  each  man  separately 
on  a  number  of  occasions  and  making  them  repeat  their 
stories  frequently,  pretending  that  in  the  press  of  busi- 
ness my  mind  was  not  clear  as  to  the  particulars.  They 
minimized  the  obvious  mistake  they  had  made  in  pre- 
tending not  to  know  each  other  and  being  in  doubt  about 
the  names,  but  the  main  features  of  their  stories  remained 
unshaken.  Gelsky  asseverated  with  the  utmost  solemnity, 
over  and  over  again,  that  Schwitofsky  was  not  the  man 
who  had  gone  to  Dale  to  demand  payment  of  the  bill  for 
$100 ;  that  he  had  made  a  pretence  of  identifying  the  por- 
trait under  physical  duress;  that  he  was  beaten  by  a 
police  officer  for  having  positively  denied  that  Schwitof- 
sky was  the  man,  and  that  he  was  in  fear  of  further  as- 
sault when  he  made  the  pretended  identification.  The 
real  accomplice  had  left  the  very  afternoon  of  the  affair 
in  Dale's  house  (that  is,  the  19th  of  January,  1911)  for 
Chicago,  saying  that  New  York  was  now  'too  hot'  for 
him.  Schwitofsky,  on  the  other  hand,  could  only  account 
for  his  arrest  by  saying  that  he,  having  worked  for  a 
private  detective  agency  during  the  Cloak  Makers '  Strike 
in  1910,  and  having  entered  all  the  vouchers  for  pay- 
ments, had  ascertained  that  two  plain  clothes  men  were 
on  the  payroll  of  Silverman's  Private  Detective  Agency, 
receiving  from  that  organization  a  certain  sum  of  money 
daily  while  they  were  in  the  employ  of  the  City,  and 
that  the  fear  that  he  might  divulge  this  impropriety  had 
led  these  plain-clothes  men  to  determine  that  he  be  put 
away  under  conditions  which  would  prevent  him  from  re- 
vealing their  wrong-doing. 

In  the  meantime,  Schwitofsky  had  been  arraigned  be- 
fore Judge  Warren  W.  Foster  of  the  Court  of  General 
Sessions,  and  had  pleaded  "Not  Guilty."  In  aswer  to 
the  usual  formal  question  he  had  stated  his  lack  of  means 
and  his  consequent  inability  to  employ  counsel,  and  the 
Judge  had  assigned  Counsellor  William  D.  Bosler,  a 


TWENTY  YEARS  IN  STATE'S  PRISON  79 

former  Deputy  District  Attorney,  to  his  defense.  It  is 
characteristic  of  Schwitof sky  that  he  told  me  that  he  had 
no  counsel,  although  it  is  quite  possible  that  in  the  be- 
wilderment attending  his  arraignment  he  had  not  noticed 
that  counsel  was  assigned  to  him.  I  took  Schwitof  sky's 
word  that  he  was  without  counsel  and  asked  my  friend, 
Mr.  Mark  Eisner,  now  the  prominent  Assemblyman,  and 
at  this  moment  actually  counsel  for  Schwitofsky  on  the 
appeal  which  may  yet  be  taken,  to  defend  him.  I  told 
Mr.  Eisner  of  the  circumstances  of  the  case  which  made 
me  desire  to  have  it  treated  with  particular  care,  the 
main  reasons  being  that  Dale  was  the  complainant  in 
both  instances;  that  the  charge  against  Gelsky,  while 
nominally  that  of  "attempted  extortion,"  really  involved 
a  suspicion  of  the  worst  kind  of  moral  turpitude  on  the 
part  of  Dale;  that  Gelsky  insisted  that  his  "enforced" 
identification  of  Schwitofsky  was  what  led  to  Schwitof- 
sky's  arrest,  and  that  there  was  a  possibility  that  Schwit- 
of sky's  story  of  his  innocence  might,  in  consequence,  be 
quite  true. 

When,  however,  Mr.  Eisner  sought  to  enter  appearance 
for  Schwitofsky  he  found  that  there  was  already  a  "coun- 
sel of  record,"  Mr.  Bosler.  Schwitofsky,  however,  said 
that  he  did  not  desire  to  have  Mr.  Bosler  act  for  him, 
because  in  an  interview  with  Mr.  Bosler  that  gentleman 
had  told  him  that  he  was  in  no  position  to  investigate 
the  story,  and  had  immediately  concluded  that  he  must 
be  insane  because  of  a  previous  incarceration  in  Mattea- 
wan,  the  State  Institution  for  the  'Criminally  Insane. 
However,  he  said  I  need  not  exert  myself  to  procure  coun- 
sel for  him,  because  Mr.  Kimball,  the  agent  for  the  New 
York  Prison  Association,  had  undertaken  to  provide  a 
substitute  counsel.  When  I  spoke  to  Mr.  Kimball  he 
verified  this  statement  but  told  me  that  the  Austrian 
Consul  (Schwitofsky  being  supposedly  an  Austrian  citi- 
zen) had  undertaken  to  provide  counsel,  and  therefore 


80  TWENTY  YEARS  IX  STATE'S  PKISOX 

there  was  no  necessity  for  the  one  he  had  proposed  to 
furnish. 

As  time  went  on  I  noticed  that  Schwitofsky  showed 
signs  of  increasing  and  extreme  nervousness,  his  hands 
constantly  shaking  when  talking  of  his  wrongs  and  his 
voice  stammering.  I  had  more  than  once  to  check  him 
and  ask  him  why  he  shook  so ;  to  tell  him  that  there  was 
no  reason  to  fear,  and  that  he  would  be  properly  looked 
after  and  justice  would  be  done  to  him.  The  attempted 
reassurance  did  not  seem  to  have  any  very  mollifying 
effect  on  his  condition. 

Mr.  Kimball,  like  Mr.  Hanley,  seemed  to  feel  that 
Schwitofsky  was  probably  innocent.  Schwitofsky,  if  I 
remember  rightly,  had  been  paroled  to  his  care  and  had 
to  report  to  him.  He,  like  Mr.  Hanley,  declared  that  he 
had  never  met  a  man  who  seemed  so  anxious  to  keep 
straight  and  earn  an  honest  living.  This  opinion  of  Mr. 
Kimball,  who  is  a  man  of  great  experience  and  the  Dean 
of  Parole  and  Probation  Officers  in  New  York  City,  was 
not  without  its  effect  in  inducing  me  to  regard  Schwit- 
ofsky as  probably  innocent. 

I  learned  that  Mr.  Bosler,  the  counsel  of  record,  had 
made  up  his  mind  that  Schwitofsky  was  insane,  and  had 
applied  to  Judge  Foster  for  a  Lunacy  Commission  to 
investigate  Schwitof sky's  mental  condition.  En  passant 
I  may  remark  that  Judge  Foster  is  noted  for  his  re- 
luctance to  appoint  such  commissions,  in  which  particular 
he  differs  from  some  of  his  brother  Judges.  These  com- 
missions are  expensive  and  seem  frequently  to  be  re- 
garded only  as  a  means  of  exercising  patronage  by  the 
judges.  Some  of  them,  however,  when  they  believe  that 
there  may  be  insanity,  prefer  the  alternative  course  pro- 
vided by  the  law  and  hold  a  Jury  trial  as  to  the  mental 
condition  of  the  accused.  Judge  Foster,  before  he  de- 
cided to  deal  with  the  application  of  Mr.  Bosler,  instructed 
Dr.  McGuire,  the  prison  physician,  and  Mr.  Kimball  to 


TWENTY  YEARS  IN  STATE'S  PKISON  81 

report  in  the  matter.  Both  considered  Schwitofsky  sane. 
Judge  Foster  therefore,  on  the  8th  of  March,  1911,  denied 
Mr.  Bosler's  motion. 

In  April  Schwitofsky  was  again  arraigned  before  Judge 
0 'Sullivan,  who  assigned  Mr.  William  H.  Carpenter  as 
counsel  in  the  case,  and  on  April  27th,  counsel,  on  behalf 
of  the  defendant,  pleaded  "Not  Guilty,"  accused  being 
insane.  On  the  same  day  a  Commission  in  Lunacy  was 
appointed  by  the  Judge. 

On  May  19th  the  Commission  reported  the  defendant 
to  be  sane,  and  the  trial  took  place  on  June  1,  1911,  when 
Schwitofsky  was  convicted  of  Burglary  in  the  Second 
Degree  and  Assault  in  the  First  Degree,  as  'Second 
Offenses.' 

When  I  learned  that  Schwitof sky's  case  was  to  come  up 
for  trial  on  June  1st  I  made  an  attempt  to  speak  to 
Judge  0 'Sullivan  about  the  case,  but  was  not  successful 
in  being  able  to  meet  him  at  a  moment  when  he  was 
disengaged.  I  therefore  made  an  appointment  with  the 
Judge  to  meet  him  on  the  Monday  morning  of  the  week 
of  the  trial  and  talk  over  the  case  with  him.  It  so  hap- 
pened that  that  was  the  week  of  the  Jewish  Feast  of 
Pentecost,  and  I  found  myself  unexpectedly  prevented 
from  keeping  the  appointment  by  business  arising  out 
of  the  arrangements  in  connection  with  the  Pentecost 
services  at  my  Temple.  I  therefore  wrote  the  following 
letter : 

31st  May,  1911. 
My  dear  Judge  O'Sullivan : 

The  approaching  Jewish  Feast  of  Weeks  (Pentecost)  makes  this  a 
very  busy  season  for  a  Rabbi.  A  mass  of  details  in  connection  with  the 
services  detained  me  so  late  last  Monday  morning  that  I  was  unable 
to  keep  the  appointment  made  with  your  Honor  last  week. 

As  I  fear  that  I  may  not  find  time  for  a  personal  interview  I  have 
decided  to  address  this  communication  to  you.  I  do  so  with  consider- 
able misgiving,  being  fully  aware  of  the  extreme  impropriety  of  at- 
tempting, or  appearing,  to  discuss  a  case  with  a  Judge  before  trial.  Yet 
there  may  arise  so  peculiar  a  concurrence  of  facts  that  the  best  interests 


82  TWENTY  YEARS  IN  STATE'S  PRISON 

of  justice  seem  to  demand  that  the  Judge  be  informed  of  all  the  cir- 
cumstances from  the  first. 

On  your  calendar  for  today  is  the  case  of  Alfred  Schwitofsky,  alias 
Gerber,  etc.,  charged  with  Burglary  (?). 

In  my  experience  as  chaplain  of  prisons  it  is  an  everyday  occur- 
rence to  hear  prisoners  stoutly  maintain  that  the  charge  against  them 
is  a  "frame-up" — the  outcome  of  malice  or  blundering  on  the  part  of  the 
police.  Of  course,  it  is  my  rule  to  pay  no  heed  to  such  statements. 

But  in  the  case  of  Schwitofsky  there  are  certain  unusual  aspects: 

1.  Schwitofsky,  or  Gerber,  was  nearly  successful  some  years  ago  in 
an  attempted  suicide,   brought  about  it  would  seem  by  despair  at  a 
sentence  for  a  felony;  and  was  in  Matteawan  for  some  time. 

2.  According  to  the  statement  of  a  credible  witness  he  made  an 
earnest  attempt  to  earn  an  honest  livelihood  after  his  discharge.     He 
was  doing  well   as   an   electrician  when  the  roguery  of   a   contractor 
ruined  him.     Thereafter,  he  tried  to  earn  a  living  as  an  employe  of  a 
private  detective  association. 

3.  According  to  the  newspaper  accounts  he  was  arrested  in  the 
present  instance  in  the  streets  on  sight  because  of  his  record  and  the 
general    distrust   the   police   entertained   about   him ;    and   the   present 
charge  was  made  after  his  arrest  and  his  transference  from  Special 
Sessions   to   General    Sessions   at   the  application   of   the   District   At- 
torney. 

4.  I  am  told  that  the  complainant  in  the  present  indictment  was 
also  the  complainant — Theodore  B.  Dale,  of  71  West  45th  Street — in 
indictment  No.  81381  found  against  Leo  Gelsky,  alias  Hoffman,  whom 
you  sent  to  Elmira  for  attempted  blackmail  on  llth  April  last. 

5.  Gelsky  never  attempted  to  deny  that  he  wrote  the  blackmailing 
letter  which  formed  the  ground  of  the  charge  against  him,  but  con- 
stantly maintained  that  he  was  justified  in  sending  that  letter  as  the 
statement  in  it  was  true,  and  he  was  entitled  to  the  money  demanded : 

6.  Gelsky  confided  to  me  that  after  his  arrest  the  officers  brought 
pressure   to   bear   on   him   to   identify   Schwitofsky   as   an   accomplice. 
When  he  declined  to  do  so,  he  states,  he  was  beaten  until  he  yielded. 
He  appeared  to  be  unaware  that  Schwitofsky  was  charged  with  a  differ- 
ent offense. 

7.  It  is  rumored  that  the  officers  who  arrested  Schwitofsky  did 
not  retain  the  confidence  of  their  chiefs. 

8.  Schwitofsky  maintains  that  certain  members  of  the  detective 
force  are  bitter  against  him  because  he  can  prove  from  his  own  knowl- 
edge that  while  they  are  in  the  employ  of  the  city  they  accept  payment 
for  their  services  from  a  private  detective  organization. 

It  is  but  right  to  say  that  both  Schwitofsky  and  Gelsky  are  old 
offenders.  Schwitofsky,  while  not  insane  in  the  legal  sense,  is  cer- 


TWENTY  YEAES  IN  STATE'S  PEISON  83 

tainly  not  normal.  I  should  judge  him  to  be  crafty  in  an  unusual  de- 
gree. Gelsky  made  what  I  believe  to  be  a  lying  pretense  that  he  had 
not  previously  been  acquainted  with  Schwitofsky. 

I  beg  you  to  read  over  the  evidence  before  the  Commission  in  in- 
sanity which  you  appointed  on  this  man. 

Yours  very  Faithfully, 
JACOB  GOLDSTEIN,  Jewish  Chaplain,  "Tombs." 

On  June  5,  1911,  Schwitofsky  was  presented  for 
sentence  before  Judge  0 'Sullivan,  who  in  sentencing 
Schwitofsky,  said: 

"The  Court  is  in  no  position  this  morning  with  regard 
to  this  man's  sentence  to  give  him  any  consideration  ex- 
cept that  which  goes  above  the  lowest  sentence  which  can 
be  imposed.  As  you  will  understand  the  law  provides 
that  in  a  case  like  his,  where  a  man  has  been  convicted 
of  an  offense  as  a  second  offense,  such  person  must  be 
sentenced  for  a  term  not  less  than  the  longest  term  pre- 
scribed by  a  first  conviction.  This  man  for  a  number  of 
years  past  has  been  living  in  prison  both  in  this  State 
and  in  other  States. 

"Somebody  has  said  that  the  inmates  of  a  prison  are 
divided  into  two  classes,  one  class  which  should  never 
be  in  prison  and  the  other  class  which  should  never  leave. 
I  think  he  belongs  to  the  second  class.  There  is  no  use 
losing  your  time  or  mine.  He  should  be  working  out  his 
sentence  now " 

His  Honor,  of  course,  was  within  his  rights  in  making 
these  or  any  similar  remarks  that  expressed  his  honest 
conviction  and  his  personal  view  of  the  case,  but  it  must 
be  remarked  that  there  was  unconsciously  some  misrep- 
resentation in  the  characterization  of  the  accused.  It 
may  have  been  literally  true  that  for  a  number  of  years 
past  Schwitofsky  had  been  "living  in  prison,"  but  it  was 
most  unfair  to  charge  against  the  man  his  detention  in 
an  institution  for  the  insane.  As  a  matter  of  fact,  with 
the  exception  of  the  very  first  sentence  in  the  Eastern 


84  TWENTY  YEARS  IN  STATE'S  PEISON 

Penitentiary  of  Pennsylvania  on  a  charge  of  Grand  Lar- 
ceny, the  commission  of  which  crime  Schwitofsky  always 
admitted,  those  who  have  investigated  his  story  are  by 
no  means  sure  that  Schwitof  sky  really  was  guilty  of  any 
other  crime. 

It  may  be  noted  as  a  legal  fact  that  the  previous  com- 
mission of  a  crime  in  another  State  does  not  make  the 
accused  a  " second  offender"  in  this  State. 

The  question  of  Schwitof  sky's  guilt  or  innocence  in 
connection  with  the  other  charges  in  this  State  I  will  nof 
here  discuss,  but  it  would  seem  that  the  only  serious 
charge  against  Schwitofsky,  previous  to  the  present  one, 
in  this  State,  was  that  he  had  committed  burglary  on  the 
premises  of  Elmer  J.  Ellsworth  of  9  E.  98th  Street.  Out 
of  this  burglary  arose  his  arrest  on  the  7th  of  March, 
1908,  and  the  alleged  finding  on  his  person  of  a  loaded 
pistol  and  certain  burglar's  tools.  Schwitofsky  states 
that  the  " burglar's  tools"  were  implements  he  needed  in 
his  calling  of  electrician,  and  while  he  admits  that  he  had 
a  pistol  on  him  at  the  time  of  his  arrest,  it  was  unloaded 
and  newly  purchased,  and  was  wrapped  up  in  a  paper 
parcel.  He  had  purchased  this  pistol  for  his  own  protec- 
tion as  a  householder.  It  must  be  remembered  that  the 
date  of  this  charge  was  antecedent  to  the  passing  of  the 
Sullivan  Law,  which  makes  the  possession  of  a  pistol, 
loaded  or  unloaded,  without  a  special  permit,  a  felony. 

Without  entering,  however,  into  this  question,  the  dis- 
cussion of  which  I  will  leave  to  Mr.  White,  there  is  no 
other  charge  in  this  State  against  Schwitofsky.  That 
there  was  a  strong  feeling  in  the  mind  of  Judge  0 'Sul- 
livan against  Schwitofsky  is  quite  clear  from  the  remarks 
above  quoted.  The  late  Judge  0  'Sullivan  was  a  man  of 
high  principle,  a  devoutly  religious-minded  man.  I  have 
never  dreamed  of  questioning  the  sincerity  of  his  con- 
viction of  Schwitof  sky 's  guilt,  and  any  remarks  that  may 
be  made  by  me  about  his  conduct  of  the  case  must  always 


TWENTY  YEARS  IN  STATE'S  PRISON  85 

be  understood  to  admit  his  honesty  of  purpose  and  con- 
scientious belief  that  he  was  right  in  what  he  did. 

The  sentence  of  Schwitofsky  was  ten  years  for  each 
charge,  the  second  period  of  ten  years  to  begin  at  the 
expiration  of  the  first  period.  In  other  words,  Schwitof- 
sky was  sentenced  to  twenty  years '  imprisonment. 

The  commitment  papers  transferring  Schwitofsky  from 
the  Tombs  to  State's  Prison  were  not  signed  till  the  17th 
of  June  following,  that  is  to  say,  twelve  days  elapsed 
between  the  sentence  and  the  transference  of  the  con- 
victed to  Sing  Sing.  In  the  meantime  I  heard  that  a 
certain  Mr.  FEANK  MAKSHALL  WHITE,  a  newspaper  man^ 
whose  attention  had  been  drawn  to  the  case,  had  been 
told  that  I  had  been  actively  interested  in  Schwitofsky, 
and  that  I  should  be  in  a  position  to  give  him  helpful 
information  in  the  matter.  Mr.  White  left  a  message  for 
me  that  he  would  like  to  speak  to  me  about  the  case.  It 
may  be  news  to  Mr.  White  that  before  I  replied  to  his 
message  I  made  private  inquiry  as  to  his  standing  in  the 
newspaper  world.  I  was  assured  on  good  authority  that 
he  was  a  man  of  the  best  standing  in  the  world  of  the 
higher  class  of  newspaper  writers ;  that  he  had  occupied 
positions  of  the  greatest  prominence,  and  that  his  char- 
acter was  altogether  beyond  suspicion.  I  wrote  to  Mr. 
White  and  we  met,  and  there  began  an  acquaintance  be- 
tween us  which  has  ripened  into  intimacy,  and  I  am 
pleased  now  to  count  Mr.  White  among  my  closest  and 
dearest  friends.  I  leave  him  to  take  up  the  story  of  our 
Odyssey  to  aid  Schwitofsky.  He  did  remarkable  work 
at  a  great  sacrifice  of  his  time  and  personal  means,  and 
the  strong  case  now  built  up  to  prove  Schwitof sky's  inno- 
cence is  in  the  greatest  part  the  result  of  his  indefatigable 
and  successful  endeavors. 

Mr.  White  and  I  early  became  convinced  that  there  had 
been  a  miscarriage  of  justice,  and  resolved  to  prosecute 
the  matter  until  we  had  freed  Schwitofsky.  It  must  be 


86  TWENTY  YEAES  IN  STATE'S  PRISON 

obvious  to  the  reader  that  the  really  important  point  in 
our  case  revolved  about  the  character  of  the  complainant, 
Theodore  B.  Dale.  This  man,  now  deceased,  was  at  the 
time  a  successful  ladies'  tailor,  who  had  carried  on  a 
business  at  71  West  45th  Street.  He  was  said  to  be  a 
man  of  considerable  means.  I  soon  learned  that  his 
reputation  was  most  unsavory,  but  could  find  nobody 
who  was  prepared  to  make  any  definite  public  statement 
about  it. 

When  Mr.  White,  after  the  lapse  of  some  months, 
showed  me  the  result  of  his  investigation,  it  seemed  pretty 
certain : 

A — That  Schwitofsky  was  not  the  man  involved  in  the 
dirty  business  that  led  to  the  charges  at  all. 

B — That  the  burglary  "in  the  second"  was  not  com- 
mitted at  all  except  in  a  very  technical,  legal  sense,  and 
it  is  quite  arguable  that  it  was  not  committed  by  anybody. 

C — That  felonious  assault  in  the  first  degree  was  posi- 
tively not  committed  at  all  by  anybody. 

Mr.  K.  Henry  Rosenberg,  the  well-known  and  very 
capable  criminal  lawyer,  very  kindly  undertook  to  prose- 
cute the  Appeal  in  Schwitof sky's  behalf.  The  first  appeal 
was  to  the  judge  himself  to  grant  a  new  trial  on  the 
ground  of  newly  discovered  evidence.  This  appeal  was 
heard  in  April,  1912,  and  Judge  0 'Sullivan  denied  the 
motion  for  a  new  trial. 

We  were  considerably  staggered  by  this  action  of  the 
Court,  but  were  not  contented,  and  on  the  19th  of  March, 
1913,  an  Appeal  was  taken  to  the  Appellate  Division  of 
the  Supreme  Court  of  the  State,  both  against  the  whole 
sentence  and  against  the  Judge's  denial  of  the  new  trial. 
Through  the  good  offices  of  Mr.  Orlando  Lewis,  of  the 
Prison  Association  of  New  York,  Mr.  Francis  D.  Gallatin 
prepared  the  brief  as  Counsel  for  Schwitofsky,  and  Mr. 
White  was  successful  in  securing  the  services  of  Mr. 
Samuel  Untermeyer,  one  of  the  most  eminent  lawyers  in 


TWENTY  YEARS  IN  STATE'S  PRISON  87 

the  country,  who  argued  the  case  before  the  Supreme 
Court.  Both  the  lawyers,  convinced  of  Schwitof  sky's  in- 
nocence, very  generously  did  their  part  free  of  cost  to 
the  accused.  Mr.  Untermeyer,  indeed,  not  only  gave  his 
valuable  time  and  talents  to  the  case,  but  also  sent  a  sub- 
scription toward  the  necessary  expenses. 

On  the  4th  of  April,  1913,  the  Appellate  Division  denied 
the  Appeal  without  stating  any  opinion,  there  being  one 
dissentient,  who  also  failed  to  give  his  reasons. 

Just  when  the  Appeal  to  the  Appellate  Division  was  on 
the  point  of  being  argued,  I  had  the  astonishing  ex- 
perience of  finding  Theodore  B.  Dale  in  the  Tombs  Prison 
(as  I  verily  believe,  in  the  identical  cell  in  which  I  first 
found  Schwitof  sky)  on  a  charge  of  "Soliciting."  It 
appears  that  on  the  16th  of  December,  1912,  a  lad  of 
seventeen,  named  Jack  Young,  who  described  himself  as 
an  actor,  was  accosted  by  Dale  in  the  Subway  near  110th 
Street ;  that  Dale,  under  pretext  of  providing  him  with 
employment,  took  him  to  the  house  where  he  was  then 
resident,  23  West  126th  Street,  and  that  there  took  place 
an  attempt  at  a  crime  almost  identical  with  that  ex- 
perienced by  Leo  Gelsky  in  1911.  Dale  was  held  in  $500 
bail  to  answer  the  charge  before  the  Court  of  Special 
Sessions.  On  January  24, 1913,  he  pleaded  ' ' Not  Guilty, ' ' 
and  when  the  case  was  called  on  the  31st  of  January, 
1913,  it  was  shown  that  he  had  absconded  from  the  city 
and  his  bail  of  $500  was  forfeited.  He  returned  from 
San  Francisco,  whither  he  had  fled,  and  presented  himself 
before  the  Court  of  Special  Sessions  February  28,  1913, 
and  pleaded  ' '  Guilty"  to  the  charge.  It  was  while  he  was 
awaiting  sentence  on  this  charge  that  I  saw  him  in  the 
Tombs,  and  in  the  course  of  conversation  he  admitted 
that  he  was  the  same  Theodore  Dale  who  had  prosecuted 
Schwitof  sky.  On  March  llth  his  plea  of  "Guilty"  was, 
by  permission,  withdrawn.  He  pleaded  "Not  Guilty" 
and  was  held  in  $1,000  bail  for  trial.  On  the  18th  of 


88  TWENTY  YEARS  IN  STATE'S  PRISON 

March,  when  his  case  came  up,  he  was  again  absent,  and 
it  was  shown  next  day  that  he  had  committed  suicide 
rather  than  face  the  trial. 

No  one  with  the  slightest  humanity  in  his  composition 
can  deny  that  Dale 's  death  was  in  a  measure  an  expiation 
for  his  offenses,  but  while  the  innocent  victim  of  his 
wrong-doing  remains  incarcerated  it  is  impossible  to  re- 
frain from  stating  in  plain  terms — without  rancor  or  spite 
— that  the  poor,  half -insane  wretch,  Dale,  was  a  well-to- 
do  degenerate  who  was  a  centre  of  mischief,  immorality 
and  perjury  while  he  yet  lived  on  earth  and  whose  evil 
deeds  survive  him. 

It  will  be  seen  that  the  character  of  Dale  was  of  so 
black  a  description  that  all  doubt  as  to  the  possible  truth 
of  Gelsky's  story  as  told  in  his  confession  to  me,  prev- 
iously embodied  in  this  statement,  can  be  dismissed,  and 
that  in  consequence  the  presumption  of  Schwitof sky's 
innocence  becomes  almost  a  certainty. 

JACOB  GOLDSTEIN. 


TWENTY  YEARS  IX  STATE'S  PRISON  89 


Journaliet's 


AN  OPEN  LETTER  TO  THE  JUDGE. 

A  resume  of  the  results  of  my  investigation  in  the  case 
of  Alfred  Schwitofsky,  up  to  the  time  of  its  publication, 
may  be  found  in  an  open  letter  to  Judge  0  'Sullivan  that 
appeared  in  Fair  Play  on  Saturday,  July  27,  1912.  Since 
that  time  Dale  has  committed  suicide,  after  confessing 
that  it  was  on  perjured  testimony  that  he  sent  Schwitof- 
sky to  20  years  in  prison,  and  Judge  0  'Sullivan  has  died. 
The  publication  of  my  letter  to  the  judge  (as  set  forth 
in  that  document)  rendered  me  liable  to  punishment  for 
contempt  of  court  or  for  criminal  libel,  had  I  in  the 
slightest  degree  overstated  the  case  against  him,  but  he 
permitted  my  censure  of  his  conduct  to  pass  unchallenged. 
The  letter  in  part  ran  thus  : 

"I  appeal  to  you,  Thomas  C.  O'Sullivan,  as  a  man  alive  to  his  in- 
dividual responsibility  to  his  fellow  men,  as  a  tribune  of  the  people 
under  oath  to  administer  justice,  as  a  communicant  of  the  Roman  Catho- 
ic  Church  that  teaches  that  every  human  creature  must  one  day  render 
an  account  of  himself  before  God,  to  undo  a  grievous  wrong  resulting 
from  a  miscarriage  of  justice  in  your  part  of  the  Court  of  General 
Sessions.  As  a  result  of  this  miscarriage  of  justice  a  man  innocent  of 
the  crimes  of  which  he  was  convicted  before  you  is  behind  the  walls  of 
Clinton  Prison  under  a  twenty-year  sentence  ;  his  wife,  a  frail  woman, 
forced  to  support  herself  and  child,  has  only  recently  left  the  hospital 
where  she  was  compelled  to  go  after  a  physical  breakdown,  and  is 
again  toiling  for  a  livelihood  on  the  verge  of  nervous  prostration  from 
worry  and  suspense,  her  child,  at  an  age  when  children  most  need  a 
mother's  care,  an  object  of  charity. 

"You  have  once  before  had  the  opportunity  to  right  this  wrong,  and 
whether  or  not  the  course  you  pursued  on  that  occasion  was  a  deliberate 
denial  of  justice  I  shall  leave  it  to  the  readers  of  this  communication 
to  determine. 


90  TWENTY  YEARS  IX  STATE'S  PRISON 

"You,  Judge  O' Sullivan,  are  aware,  as  I  am,  that  if  in  this  letter 
I  overstate  the  case  against  you  one  iota  it  is  within  your  power 
to  inflict  condign  punishment  upon  me.  My  sole  motive  in  bringing  this 
matter  again  before  the  public  is  to  see  justice  done  to  a  fellow  crea- 
ture. I  have  been  told  that  my  assiduity  in  this  direction  has  been 
sneered  at  in  certain  quarters  as  due  to  an  effort  to  make  circulation 
for  this  magazine  through  an  attack  upon  a  judge.  That  idea  is  refuted 
by  the  fact  that  the  investigation,  whereby  I  have  proved  the  victim  in 
this  case  to  be  innocent  of  the  crimes  of  which  he  was  convicted,  was 
concluded  and  the  application  for  a  new  trial  made  for  him,  before  the 
magazine  came  into  existence. 

"Does  not  the  fact  that  I  knoiv  an  innocent  man  to  be  undergoing 
a  twenty-year  prison  sentence  constitute  a  sufficient  motive  for  me  to 
demand  justice  for  him? 

"Shall  I,  after  many  weeks  of  uncongenial  labor  to  prove  that  this 
man  is  not  guilty  of  the  crimes  for  which  he  is  being  punished,  remain 
mute  after  you,  Judge  O' Sullivan,  have  contemptuously  ignored  the 
proofs  of  his  innocence  I  have  been  the  means  of  bringing  before  you. 

*  *  *  * 

"It  seems  to  me,  Judge  O'Sullivan,  that  the  circumstance  that  such 
a  man  as  Dale  was  behind  the  arrest  in  the  instances  of  both  Gelsky  and 
Schwitofsky  was  a  sufficient  reason  in  itself  to  cause  you  to  exercise 
extraordinary  care  at  the  trial  of  the  latter.  I  can  easily  understand, 
nevertheless,  that  believing  Schwitofsky  to  be  of  the  same  perverted 
breed  as  Gelsky  and  Dale,  you  might  consider  that  it  did  not  matter 
much  what  happened  to  him.  In  fact,  I  rather  suspect  that  that  may 
have  had  something  to  do  with  your  conduct  of  this  case. 

*  *  *  * 

"In  obtaining  the  evidence  disproving  Schwitofsky's  guilt  in  the 
Dale  matter  I  found  reason  to  believe  that  his  charge  that  he  was  a 
victim  of  police  persecution  was  true.  Consequently  it  became  neces- 
sary to  take  up  the  matter  of  his  arrest  in  Harlem  in  March,  1908, 
as  the  result  of  which  he  had  served  a  sentence  of  six  months  on  con- 
viction for  carrying  concealed  weapons,  spent  more  than  two  years  in 
the  Manhattan  Asylum  for  the  Criminal  Insane,  and  then  had  pleaded 
guilty  to  a  charge  of  having  had  burglars'  tools  in  his  possession  on  a 
promise  of  suspended  sentence. 

"In  the  pursuit  of  this  inquiry  I  have  examined  and  cross-examined 
— with  the  consent  and  approval  of  Commissioner  Waldo — every  police- 
man and  detective,  who  is  on  record  as  having  had  anything  to  do  with 
Schwitofsky  since  he  came  to  New  York  after  finishing  his  term  in 
the  Eastern  Penitentiary  in  Philadelphia,  including  Lieuts.  William  H. 
Kinsler  and  William  W.  Duggan,  whom  he  accuses  of  being  at  the  bottom 
of  all  his  recent  misfortunes.  I  have  examined  all  police  records  of 
the  various  arrests  of  Schwitofsky — with  startling  results.  I  have  in- 
terviewed the  victims  of  his  alleged  crimes.  I  have  cross-examined 


TWENTY  YEAES  IN  STATE'S  PRISON  91 

Gelsky  in  the  Elmira  Reformatory,  and  I  have  traced  back  Sehwitof- 
sky's  career  as  he  outlined  it  to  me  in  prison  from  the  time  of  his  last 
arrest  to  his  arrival  in  New  York  in  the  fall  of  1907,  visiting  the  places 
at  which  he  had  lived  and  his  former  places  of  business  and  looking  up 
and  talking  with  his  old  acquaintances. 

"As  the  result  of  this  investigation  (of  which  I  have  previously 
furnished  you,  Judge  O'Sullivan,  with  full  details)  I  am  convinced  that 
Alfred  Schwitofsky  has  endeavored  to  lead  an  honest  life  since  he  fin- 
ished his  term  for  the  one  crime  he  admits  having  committed,  and  I 
believe  that  his  present  unhappy  plight  is  due  to  police  persecution,  as 
he  has  maintained  all  along.  The  facts  upon  which  I  base  these  conclu- 
sions have  already  been  set  forth  in  this  magazine,  and  not  one  fact  or 
one  deduction  from  facts  has  yet  been  disputed. 


"The  circumstance  that  Schwitofsky  bore  on  the  inside  of  his  left 
wrist  incised  scars  made  three  years  before  with  a  sharp  instrument, 
when  he  had  attempted  suicide  in  the  Tombs  prison  by  reason  of  his 
earlier  misfortunes,  and  that  Deputy  Assistant  District  Attorney  Mc- 
Cormick  was  permitted  by  you  to  lead  the  jury  to  believe  that  those 
scars  were  the  ones  that  had  been  made  by  Harold  on  the  occasion  of 
the  alleged  burglary  at  Dale's  house,  brought  about  the  miscarriage  of 
Justice  in  your  court  in  June,  1911. 

"Why,  Judge  O'Sullivan,  did  you  refuse  to  allow  Schwitofsky  to 
explain  to  the  jury  how  he  came  by  those  scars? 

"You  had  the  opportunity  to  right  the  wrong  done  Alfred  Schwitof- 
sky, when  the  application  was  made  before  you  last  January  for  a  new 
trial.  There  were  only  five  short  affidavits  to  be  considered — one  made 
by  Frank  Harold,  to  the  effect  that  he  had  stopped  the  alleged  Dale 
burglar  and  dug  the  skin  from  the  back  of  his  right  wrist  and  that  the 
revolver  he  had  taken  from  him  contained  only  two  blank  cartridges ; 
one  from  Detective  Edward  J.  Cousin,  who  took  the  revolver  from 
Harold  to  the  police  property  clerk,  and  who  corroborated  Harold's 
testimony  that  the  cartridges  it  contained  were  blank ;  two  from  Dr. 
Julius  B.  Ransom,  a  medical  practitioner  of  30  years'  standing,  who 
examined  Schwitofsky's  wrists  on  two  separate  occasions  and  made 
oath  that  the  skin  had  not  been  broken  within  five  years,  and  one 
from  Gelsky,  who  swore  that  Schwitofsky  was  not  the  man  who  had 
accompanied  him  to  Dale's  house  on  the  morning  of  the  alleged  burglary, 
and  that  he  (Gelsky)  had  under  coercion  assisted  the  police  to  "frame 
up"  the  evidence  against  their  victim. 

"In  spite  of  the  fact  that  the  affairs  of  a  potentially  innocent  man 
in  prison  ought  under  the  most  primitive  rules  of  justice  to  be  ex- 
pedited, you,  Judge  O'Sullivan,  took  seven  weeks  to  consider  these  affi- 
davits, and  then  in  denying  Schwitofsky  a  new  trial  practically  ignored 
them.  You  did  not  even  claim  as  a  hard  and  fast  proposition  that 
Schwitofsky  was  guilty  of  the  crimes  for  which  he  is  being  punished. 


92 

You  merely  said  that  in  your  opinion  the  prisoner  was  fairly  tried  and 
that  you  regarded  the  verdict  of  the  jury  a  just  one ;  that  the  lawyers 
assigned  to  defend  him  "had  ample  time  to  acquaint  themselves  with 
every  phase  of  the  case,"  and  that  you  believed  that  they  "were  familiar 
with  all  the  facts  and  circumstances  and  could  have  adduced  the  testi- 
mony upon  which  it  is  now  sought  to  obtain  a  new  trial." 

"In  other  words,  because  Lawyers  Keir  and  Carpenter,  whom  you 
had  appointed  to  defend  Schwitofsky,  had  refused  to  look  up  his  wit- 
nesses or  to  prepare  his  defense,  you  are  willing  that  an  innocent  man 
should  spend  20  years  of  his  life  in  prison.  Is  that  the  law  of  the 
Court  of  General  Sessions,  Judge  O'Sullivan?  If  it  is,  any  judge  of  that 
court  has  it  in  his  power  to  railroad  a  penniless  citizen  to  prison  for 
as  many  years  as  he  likes.  All  that  the  Judge  with  such  a  purpose  will 
need  to  do  is  to  secure  the  indictment  of  his  victims  on  a  trumped-up 
charge  and  assign  any  of  the  shysters  about  the  criminal  courts  to  de- 
fend him,  with  private  instructions  not  to  produce  his  witnesses.  Then 
when  the  victim  is  convicted  and  sentenced,  the  judge  may  deny  an 
appeal  for  a  new  trial  on  the  ground  that  his  lawyers  were  familiar  with 
all  the  facts  and  circumstances  and  could  have  adduced  at  the  first 
trial  the  testimony  upon  which  it  was  sought  to  obtain  a  new  trial. 

"And  now,  Judge  O'Sullivan,  what  do  you  propose  to  do  in  this 
matter?  Will  you  allow  Alfred  Schwitofsky,  who  has  already  been  im- 
prisoned more  than  a  year  and  a  half  for  crimes  which  he  did  not  com- 
mit, to  suffer  for  additional  months  until  his  case  can  be  passed  on  by 
the  Supreme  Court,  during  which  period  his  wife  may  become  insane  or 
even  die  (I  do  not  exaggerate  her  mental  and  physical  condition  in  the 
least),  or  will  you  reconsider  now  a  new  trial  for  him?" 

"Your  conduct  of  the  Schwitofsky  case  is  not  going  to  add  to  your 
reputation  in  any  event,  Judge  O'Sullivan,  but  the  longer  you  allow 
an  innocent  man  to  lie  in  a  prison  cell  while  his  family  suffers,  the 
greater  will  be  your  sin  in  the  eyes  of  God  and  of  the  community  in 
which  you  dwell." 

THE   PBISONER. 

On  the  occasion  of  my  first  visit  to  Schwitofsky,  I 
found  him  in  a  pitiably  neurotic  condition,  as  he  was  in- 
deed on  the  occasions  of  my  subsequent  visits.  His 
emotion  was  such  that  his  words  ran  over  one  another 
alternately  with  periods  of  stammering,  while  his  hands 
trembled  with  increasing  violence  as  he  told  the  story, 
that  was  frequently  interrupted  by  tears,  of  his  alleged 
wrongs  and  their  culmination.  As  he  had  spent  the  best 
part  of  the  last  8  years  in  prisons  and  hospitals,  and 


TWENTY  YEAES  IN  STATE'S  PRISON  93 

was  contemplating  20  more  years  like  them,  his  weakness 
may  scarcely  be  considered  unaccountable.  Schwitofsky 
is  a  very  small  man — only  five  feet  and  half  an  inch  in 
height.  He  is  of  pronounced  Slavonic  type  and  speaks 
English  with  a  foreign  accent,  for  tho  he  was  born  in 
the  United  States  he  was  taken  to  Austria,  the  home 
of  his  parents,  when  only  two  years  of  age.  He  is  an 
electrician  by  profession  and  a  man  of  intelligence  and 
education,  who  speaks  several  modern  languages  and  is 
capable  of  a  Latin  quotation  on  occasion.  While  he 
admits  the  commission  of  a  crime  in  1903,  and  that  owing 
to  circumstances  that  he  was  not  always  able  to  control 
his  associations  in  New  York  have  not  been  of  the  best, 
he  claims  that  he  has  kept  within  the  law  since  he  served 
his  term  of  punishment.  My  investigations  convince  me 
that  he  is  a  victim  of  police  persecution.  I  believe  that 
he  was  put  in  prison  by  a  police  "frame-up." 

POLICE  PERSECUTION. 

Sentence  was  suspended  in  Schwitof sky's  "framed-up" 
Harlem  burglary  case  in  August,  1910.  Leaving  the 
Tombs  penniless,  he  was  befriended  by  a  barber  who 
had  been  his  neighbor  in  117th  Street,  until  he  found 
work  with  Louis  Berlion,  an  electrician  doing  business 
in  2nd  Avenue.  During  his  first  week  with  Berlion  he 
was  accosted  in  the  street  by  two  detectives  who  had 
seen  him  in  the  "line  up"  at  police  headquarters,  on  the 
way  with  his  bag  of  tools  to  do  a  job  for  his  employer. 
Under  the  impression  that  he  was  beyond  the  power  of 
the  police  as  a  paroled  prisoner  earning  an  honest  living, 
Schwitofsky  was  rash  enough  to  defy  the  detectives  and 
to  enjoin  them  to  take  word  to  his  persecutors,  Kinsler 
and  Duggan,  that  he  was  going  to  "get  even"  with 
them.  At  the  end  of  the  week  Berlion  discharged  him, 
giving  as  his  reason  that  he  did  not  "want  any  trouble 
with  the  police. ' ' 


94  TWENTY  YEAES  IN  STATE'S  PRISON 

Schwitofsky  next  got  work  in  a  garage,  and  by  Octo- 
ber had  saved  money  enough  to  open  an  electrician's 
shop  of  his  own  at  19  and  21  Second  Avenue.  Here  he 
prospered  until  he  took  a  contract  to  put  up  a  big  electric 
light  sign  at  6  and  8  Doyers  Street,  in  Chinatown,  on 
which  he  did  two  weeks'  work  with  several  workmen, 
only  to  be  swindled  out  of  payment.  He  was  ruined 
pecuniarily  and  compelled  to  close  his  shop.  He  says 
that  while  he  was  at  work  in  Doyers  Street,  Kinsler, 
Duggan  and  another  detective,  William  Brown  (who 
afterwards  arrested  him  in  the  Dale  case)  one  day  came 
upon  him  and  denounced  him  as  an  ex-convict  in  the 
presence  of  his  workmen.  On  this  occasion  he  went 
to  Judge  Swann's  chambers  in  the  Criminal  Courts 
building  and  reported  the  occurrence. 

Out  of  work  again  and  unable  to  find  employment  at  his 
trade,  Schwitofsky  secured  a  position  with  Isaac  Sil- 
verman,  head  of  the  Fidelity  Secret  Service  Bureau, 
where  he  says  that  he  discovered  that  his  old  enemies, 
Kinsler  and  Duggan,  were  taking  pay  from  Silverman  for 
work  they  were  surreptitiously  doing  in  connection  with 
the  cloak  makers'  strike  that  was  then  in  progress,  when 
they  should  have  been  on  duty  for  the  city.  It  was  his 
threat  to  expose  these  conditions,  Schwitofsky  believes, 
that  brought  about  his  present  predicament.  It  should 
be  understood  that  he  was  contumacious  and  aggravating 
in  his  treatment  of  the  two  detectives,  not  manifesting 
the  deference  that  a  man  who  has  been  in  prison  is  sup- 
posed by  agents  of  the  law  to  show  them.  It  was  unwise 
for  him  to  threaten  to  report  Kinsler  and  Duggan  to 
Police  Commissioner  Bingham  for  taking  money  from 
Silverman.  The  day  after  he  made  this  threat,  he  says 
that  he  was  accosted  in  the  street  by  Detective  John  F. 
Talt,  also  of  the  Central  Detective  Bureau,  who  said  to 
him: 

''You've  gone  the  limit.    Now  you  take  my  advice  and 


TWENTY  YEARS  IX  STATE'S  PEISOX  95 

get  out  of  the  city  within  24  hours,  or  we'll  send  you  up 
for  good!" 

It  is  Talt  who  is  accused  by  Gelsky  of  coercing  him 
into  falsely  identifying  Schwitofsky  as  the  Dale  burglar. 


PROBABLE   INNOCENCE. 

The  circumstance  that  Schwitof sky's  wrist  did  not 
bear  the  marks  of  the  finger-nails  of  the  chauffeur  at  the 
Hotel  Webster  was  conclusive  proof  to  my  mind — without 
the  additional  evidence  I  secured  later — that  he  was  not 
the  man  who  had  invaded  the  tailor's  shop  on  the  morn- 
ing of  January  19th.  On  making  inquiries  I  found  that 
there  were  at  least  four  men  in  a  position  to  form  ac- 
curate opinions,  who  had  grave  doubts  as  to  Schwitof  sky's 
guilt — Babbi  Goldstein,  the  Jewish  chaplain  of  the 
Tombs;  Mr.  Kimball,  of  the  Prison  Association;  Mr. 
Strisik,  of  counsel  for  the  Austrian  Consulate,  and  John 
Hanley,  then  deputy  warden  of  the  Tombs.  Eabbi  Gold- 
stein had  put  his  views  in  the  matter  on  record  in  the 
letter  to  Judge  0 'Sullivan,  that  was  on  file  with  the  rest 
of  the  Schwitofsky  dossier  in  the  office  of  the  clerk  of 
General  Sessions.  Mr.  Strisik 's  investigation  in  the  case 
during  the  brief  period  that  he  had  it  in  hand  had  led 
him  to  believe  that  there  was  strong  probability  of  the 
prisoner's  innocence. 

Mr.  Kimball  and  Mr.  Hanley  did  not  believe  that 
Schwitofsky  was  the  Dale  burglar,  because  they  knew  of 
his  efforts  to  make  an  honest  living  during  the  period 
between  the  suspension  of  his  sentence  by  Judge  Swann 
in  August,  1910,  and  his  arrest  in  February,  1911.  The 
little  electrician  had  made  a  point  of  calling,  sometimes 
as  often  as  twice  a  week,  on  the  agent  of  the  Prison 
Association  in  the  Criminal  Courts  Building  and  on  the 
deputy  warden  of  the  Tombs,  to  let  them  know  how  he 
was  getting  on. 


96  TWENTY  YEARS  IN  STATE'S  PRISON 

"I  never  knew  such  a  change  in  a  man  as  appeared  in 
Schwitofsky  from  the  time  he  was  half  crazy  with  anxiety 
and  suspense  in  the  Tombs  and  afterward,  when  he  be- 
came a  free  man  and  began  for  a  time  to  prosper,"  says 
Mr.  Kimball.  "He  would  fairly  beam  with  pleasure  when 
he  came  into  my  office  to  tell  me  of  a  contract  he  had 
secured,  or  of  the  purchase  of  new  tools.  If  he  was  lead- 
ing a  'double  life,'  and  working  ten  or  twelve  hours  a 
days  as  a  cover  for  burglary  at  night,  he  is  the  first  crook 
to  do  so  in  my  experience." 

Mr.  Hanley  had  definite  information  that  made  him 
believe  that  Schwitofsky  could  not  be  sure  of  a  square 
deal  from  the  police,  that  went  back  to  his  arrest  in 
Harlem.  Three  days  after  he  had  been  taken  into  cus- 
tody in  Lenox  Avenue  Schwitofsky  had  been  ' '  lined  up ' ' 
with  a  dozen  other  inmates  in  the  Tombs,  and  Kinsler 
and  Duggan  had  brought  in  several  householders,  men 
and  women,  from  whom  property  had  recently  been 
stolen,  to  ascertain  if  they  recognized  any  of  the  prison- 
ers as  persons  they  had  seen  in  the  vicinity  of  houses 
that  had  been  robbed.  On  this  occasion  Hanley  had  de- 
tected Duggan  surreptitiously  pointing  out  Schwitofsky 
to  a  woman  as  the  person  he  wished  her  to  identify,  after 
she  had  previously  indicated  an  Italian  as  the  man  she 
had  seen  in  her  apartment.  The  deputy  warden  had  made 
a  memorandum  of  this  circumstance  in  the  identification 
book  at  the  Tombs,  and  is  prepared  to  produce  the  book 
in  court  and  give  his  evidence  whenever  they  are  called 
for. 

THE  JUDGE  INTERVIEWED. 

All  things  considered,  I  felt  justified  in  laying  before 
Judge  0 'Sullivan  the  information  I  had  gathered  with 
regard  to  Schwitofsky.  I  found  that  the  judge  was  cog- 
nizant of  all  the  circumstances. 

"Schwitofsky  was  ably  defended,"  he  told  me.    "Mr. 


TWENTY  YEARS  IX  STATE'S  PEISOX  97 

Carpenter,  the  first  lawyer  I  assigned  to  the  case,  has 
the  respect  of  the  judges  of  General  Sessions,  and  Mr. 
Keir,  whom  I  asked  to  assist  him,  is  a  brilliant  advocate. 
The  prisoner  was  found  guilty  after  a  fair  and  impartial 
trial,  and  the  sentence  of  20  years  is  the  lightest  I  could 
impose  on  him  as  a  second  offender." 

Judge  0 'Sullivan  thought  that  Schwitofsky  had  not 
treated  his  lawyers  with  sufficient  consideration,  and  said 
that  they  had  found  him  a  difficult  person  to  deal  with. 
As  an  abstract  proposition  the  prisoner  ought,  of  course, 
to  have  maintained  a  bland  and  cheerful  front  when  the 
legal  gentlemen  declined  to  look  up  his  witnesses  and  his 
chances  for  regaining  freedom  fled  before  him.  Schwitof- 
sky's  recent  experiences  may,  however,  scarcely  be  said 
to  have  been  favorable  for  the  cultivation  of  optimistic 
serenity. 

Inspection  of  the  papers  in  the  Schwitofsky  case  in  the 
clerk's  office  of  the  Court  of  General  Sessions  showed 
that  the  prisoner  himself  had  brought  certain  conditions 
to  the  attention  of  the  judge.  I  found  two  of  his  letters 
on  file,  one  written  the  day  after  he  had  been  found 
guilty,  and  the  other  several  days  later  when  sentence 
had  been  pronounced.  The  latter  was  as  follows : 

A   CRY   FROM 

New  York,  June  the  8th,  1911. 

Hon.  Judge  0 'Sullivan: 

If  your  Honor  pleases,  I  beg  to  state  that  on  the  date 
sentence  was  imposed  on  me  Attorney  Mr.  W.  G.  Keir 
had  pleaded  contrary  to  my  wishes.  I  did  not  ask  for 
the  clemency  of  the  court,  but  I  did  ask  for  a  fair  and 
impartial  trial,  which  I  did  not  receive.  Your  Honor  did 
not  give  me  the  least  opportunity  to  tell  my  story  of 
police  persecution,  which  goes  back  as  far  as  1907.  This 


98  TWENTY  YEARS  IN  STATE'S  PRISON 

I  am  able  to  prove  if  investigated.  Your  Honor  also 
denied  the  motion  wishing  to  explain  how  I  got  those 
scars  on  the  front  of  my  left  wrist  after  the  District 
Attorney  had  used  them  against  me  towards  the  jury, 
stating  that  those  are  the  cuts  from  a  chauffeur's  finger 
nails.  I  could  have  proven  by  reliable  witnesses  and 
records  that  I  have  had  them  since  1908. 

I  again  repeat,  having  no  one  to  investigate  my  case 
and  no  means  to  obtain  competent  attorneys  in  the  begin- 
ning is  the  cause  of  my  going  to  prison  an  innocent  man. 
From  a  bench  of  Justice  your  Honor  announced  that  your 
Honor  had  provided  me  a  competent  attorney,  and  that  I 
had  had  sufficient  time  to  prepare  for  trial.  The  first 
I  rejected,  the  second  I  rejected;  then  your  Honor  has 
assigned  the  attorney  to  conduct  my  case. 

My  first  attorney,  Mr.  Bosler,  assigned  to  me  by  Hon. 
Judge  Foster,  declared  me  insane  as  soon  as  he  found 
that  I  had  no  means  and  had  been  confined  in  Matteawan. 
Hon.  Judge  Foster  appointed  Dr.  McGuire  and  Mr.  Kim- 
ball  to  inquire  into  my  sanity.  I  asked  Mr.  Bosler  to 
investigate  several  matters  concerning  my  case.  To  this 
he  replied:  "What!  Do  you  think  I  am  going  to  spend 
my  time  and  money  on  your  case,  when  there  is  nothing 
in  it  for  me  ?  I  will  defend  you  as  an  officer  of  the  court 
whenever  you  are  going  to  be  tried." 

I  leave  it  to  your  Honor's  judgment  if  I  rejected  Mr. 
Bosler  wrongfully.  Mr.  Carpenter,  the  second  attorney 
assigned  to  me  by  your  Honor,  called  on  me  five  minutes 
previous  to  my  arraignment  before  your  Honor.  Mr. 
Carpenter  declared  me  insane.  Speaking  to  him  about 
two  minutes,  he  withdrew  the  plea  and  entered  a  plea 
of  insanity.  At  no  other  meeting  of  the  Commission  but 
the  first  was  Mr.  Carpenter  present,  and  I  did  not  see 
him  until  May  24.  At  that  date  I  explained  my  case 
to  Mr.  Carpenter.  The  28th  May  I  was  to  be  placed  on 
trial,  and  I  asked  Mr.  Carpenter  if  he  knew  my  case. 


TWENTY  YEARS  IX  STATE'S  PRISON  99 

To  this  he  replied:  "From  A  to  Z."  I  then  requested 
him  to  tell  me  on  what  charge  I  was  arrested  and  held 
by  Judge  O'Connor  in  the  Police  Court.  He  said  that  I 
was  arrested  on  a  charge  of  grand  larceny.  It  was  then 
I  told  Mr.  Carpenter :  ' '  How  are  you  going  to  defend  me, 
if  you  don't  know  the  beginning  of  my  case!"  He  in- 
formed me  that  he  is  going  to  get  out  of  my  case,  and  I 
should  ask  for  another  attorney.  To  this  I  consented. 
Your  Honor  denied  Mr.  Carpenter's  motion,  and  assigned 
Mr.  W.  G.  Keir.  I  had  but  15  minutes  or  so  to  prepare 
for  trial.  Mr.  W.  G.  Keir,  the  less  informed  counsel, 
tried  the  case,  while  Mr.  Carpenter  drawed  all  sorts  of 
pictures.  At  the  end  Mr.  Carpenter  summed  up  and 
pleaded  for  me,  being  unfortunate,  he  pleaded  for  mercy, 
clemency,  everything  but  facts.  How  could  he?  A 
prisoner  could  not  do  two  things  at  once.  This  I  also 
leave  to  your  Honor's  judgment. 

I  do  believe  that  if  Mr.  W.  G.  Keir  had  had  time  to 
investigate  my  case  I  would  have  been  defended  properly. 
Since  my  conviction  I  received  a  letter  which,  if  investi- 
gated, will  reveal  the  truth.  Having  no  one  to  do  so,  I 
ask  in  the  name  of  justice  that  you  assign  Mr.  Kimball 
to  investigate  this  letter.  Your  Honor  it  is  impossible 
for  me  to  think  that  by  a  court  of  justice  an  innocent 
man  could  be  sent  to  prison,  but  I  trust  in  God  that  he  will 
not  allow  me  to  suffer  very  long.  There  could  be  only 
one  true  story  to  a  case,  but  the  minutes  of  my  trial  will 
show  that  every  witness  had  committed  perjury,  excopt 
the  one  from  the  Telephone  Company.  May  God  forgive 
those  who  have  put  this  sorrow  upon  me.  I  cannot. 

Hoping  and  trusting  that  your  Honor  will  grant  my 
request  and  assign  Mr.  Kimball  to  investigate  my  case 
thoroughly,  I  remain 

Obediently  yours, 

ALFRED  SCHWITOFSKY. 


100  TWENTY  YEARS  IN  STATE'S  PRISON 

A  "FRAME-UP"? 

Sentence  had  been  pronounced  on  Schwitofsky  on  June 
5th,  but  he  had  not  yet  been  taken  to  Sing  Sing  on  the 
14th,  the  day  I  called  on  Judge  0 'Sullivan.  This  would 
mean  in  ordinary  circumstances  that  some  detail  of  his 
case  was  still  under  consideration  by  the  judge.  When, 
therefore,  Schwitofsky  was  ordered  to  Sing  Sing  by 
0 'Sullivan  the  day  after  my  visit  to  him,  and  I  was  in- 
formed by  Dr.  Goldstein  and  Mr.  Kimball  that  very  prob- 
ably it  was  my  interference  that  had  brought  about  the 
immediate  execution  of  the  sentence  and  perhaps  pre- 
vented further  official  inquiry  as  to  the  prisoner's  inno- 
cence, I  considered  myself  in  duty  bound  to  continue  my 
investigation. 

This  was  the  situation:  If  Schwitofsky  was  the  in- 
nocent victim  of  a  police  "frame-up,"  which  had  its 
inception  with  Kinsler  and  Duggan,  and  Gelsky's  story 
of  coercion  by  the  detectives  who  made  the  arrest  in  the 
Dale  case  was  true,  it  was  necessary  to  assume  that 
Brown,  Talt,  Dungate  and  Donnelly,  the  detectives  who 
brought  about  Schwitof sky's  arrest  on  Gelsky's  identifi- 
cation of  his  photograph,  or  one  or  more  of  the  four,  had 
taken  advantage  of  the  escape  of  the  real  criminal  to 
"job"  the  little  electrician  as  a  favor  to  their  two 
brothers-in-arms — unless,  indeed,  one  or  more  of  the 
quartette  harbored  a  grudge  against  him.  If  Schwitof- 
sky's  arrest  had  been  brought  about  by  his  two  alleged 
enemies  without  the  connivance  of  Brown,  Talt,  Dungate 
or  Donnelly,  or  any  of  them,  the  only  other  hypothesis 
was  that  Dale  had  been  influenced  by  Kinsler  and  Duggan 
to  identify  Schwitofsky  falsely  as  the  burglar  of  Jan- 
uary 19th. 


TWENTY  YEARS  IN  STATE'S  PRISON  101 

DEPUTY  POLICE  COMMISSIONER  DOUGHERTY  " HELPS/' 

My  impression  that  there  was  at  least  a  possibility 
that  Schwitofsky  was  the  victim  of  a  "frame-up"  being 
strengthened  by  the  views  of  Dr.  Goldstein,  Messrs.  Kim- 
ball  and  Strisik  and  Deputy  Warden  Hanley,  I  laid  the 
matter  before  Police  Commissioner  Ehinelander  Waldo. 
Mr.  Waldo  at  once  sent  for  Second  Deputy  George  S. 
Dougherty,  who  had  only  recently  come  into  the  depart- 
ment from  the  celebrated  Pinkerton  agency  and  was  then 
in  charge  of  the  detective  bureau  at  police  headquarters, 
and  directed  him  to  make  a  thoro  investigation  into  all 
the  circumstances  surrounding  Schwitof sky's  arrest.  In 
Mr.  Dougherty's  office  I  gave  him  the  information  in  my 
possession  with  regard  to  the  case,  of  which  he  made 
notes  on  both  sides  of  several  sheets  of  paper,  professing 
a  lively  interest  in  it. 

"I'll  get  some  good  men  out  right  away,"  he  said. 
"Let's  see — this  is  Monday.  Come  in  on  Wednesday 
morning,  and  I'll  report  progress." 

The  Schwitofsky  problem  seemed  to  me  as  I  left  police 
headquarters  that  morning  likely  to  have  a  quick  solu- 
tion. What  with  the  famed  Pinkerton  finesse  backed  by 
the  entire  police  power  of  New  York,  I  looked  forward  to 
Wednesday  with  a  view  to  the  disclosure  of  some  master- 
ful detective  work.  It  was  a  particularly  propitious  cir- 
cumstance, I  thought,  that  neither  Waldo  nor  Dougherty 
had  come  into  the  department  until  after  the  occurrences 
to  be  investigated,  since  under  existing  conditions  the 
latter  might  hew  to  the  line  regardless  of  the  direction 
taken  by  his  chips. 

I  was  at  Deputy  Commissioner  Dougherty's  office 
promptly  at  the  hour  he  had  specified  on  Wednesday 
morning,  but  there  was  no  adroit  unraveling  of  a  mystery 
to  admire.  The  long  arm  of  coincidence  and  the  fat  head 
of  prejudication  had  become  factors  in  the  situation.  It 
so  chanced  that  Dougherty  had  been  one  of  the  detectives 


102 

to  arrest  Schwitofsky  for  the  crime  lie  admitted  commit- 
ting in  Pennsylvania  in  1903,  tho  he  had  not  at  first  recog- 
nized the  name. 

"I  remember  that  fellow  well,"  Dougherty  now  de- 
clared. "He's  a  criminal  type — the  kind  Lombroso  tells 
about.  He  can  never  be  anything  else  but  a  criminal. ' ' 

I  reminded  the  deputy  commissioner  that  modern 
science  discredited  Lombroso  in  so  far  as  recognition  of 
the  existence  of  a  criminal  type  was  concerned,  but  he 
was  not  to  be  convinced  that  he  could  be  mistaken  in  his 
estimate  of  Schwitofsky  formed  eight  years  before,  tho 
he  had  not  seen  or  heard  of  him  since  until  the  present 
occasion. 

I  found  that  Dougherty  had  construed  Waldo 's  instruc- 
tions to  investigate  the  circumstances  surrounding  the 
arrest  of  Schwitofsky  to  mean  that  Schwitof  sky's  guilt 
was  to  be  proved  to  me.  He  had  sublet  part  of  the  con- 
tract to  Lieutenant  Dominick  Eiley,  who  has  since  become 
a  captain.  Riley  had  ordered  the  attendance  at  the  deputy 
commissioner's  office  that  morning  of  Lieutenant  Duggan 
— Kinsler  being  absent  from  the  city  on  vacation — of 
Detective  Brown,  and  of  Scherer,  the  policeman  who  had 
appeared  against  Schwitofsky  on  the  occasion  of  his 
arrest  in  East  12th  Street.  Inspector  Weinthal  of  the* 
Hoboken  police  department  was  also  in  attendance,  by 
request. 

Before  the  inquiry  began  Lieut.  Riley  did  me  the  honor 
to  take  me  into  his  confidence.  He  was  the  kind  of  a 
detective,  he  gave  me  to  understand,  who  would  not  hes- 
itate were  it  part  of  the  day's  work  to  fix  a  crime  upon 
his  own  brother.  He  could  not  bring  himself  to  believe 
that  Bill  Brown,  whom  he  regarded  as  a  brother,  could 
possibly  be  guilty  in  the  matter  of  a  frame-up,  he  said, 
but  nevertheless  should  duty  call  he  would  not  shrink 
from  expediting  Brown 's  or  any  other  policeman 's  course 
in  the  direction  of  prison  or  the  electric  chair.  It  seemed 


TWENTY  YEARS  IX  STATE'S  PRISON  103 

altogether  improbable  to  Riley,  admitting  that  Kinsler 
and  Duggan  had  annoyed  Schwitofsky  while  he  was  at 
work  in  Doyers  Street,  that  Brown  should  have  been  in 
their  company,  for  (strictly  between  ourselves)  he  under- 
stood that  Brown  was  not  on  speaking  terms  with  either 
Kinsler  or  Duggan.  As  I  had  seen  Brown  and  Duggan 
in  amicable  converse  in  the  anteroom  only  a  few  minutes 
before,  I  was  able  to  admire  the  subtlety  of  Lieut.  Riley 's 
method  without  being  unduly  influenced  in  its  application. 

When  the  Schwitofsky  case  was  called  before  Deputy 
Commissioner  Dougherty,  one  after  the  other  of  the  wit- 
nesses told  what  they  knew  in  the  electrician's  disfavor. 
I  was  allowed  the  privilege  of  cross-examination,  but  the 
only  additional  information  I  got  was  from  Lieut.  Brown. 
Brown  said  that  after  Schwitof sky's  arrest  he  and  Don- 
nelly had  taken  their  prisoner  to  the  taxicab  starter's  box 
on  the  sidewalk  before  the  Hotel  Webster  at  40  West 
Forty-fifth  Street.  It  seemed  that  the  chauffeur  who 
acted  as  starter  at  the  hotel  had  stopped  the  bogus  tele- 
phone repairer  when  he  ran  from  Dale's  house  further 
down  the  block  on  the  morning  of  January  19th;  had 
taken  his  pistol  from  him,  and  in  doing  so  had  torn  the 
skin  from  the  back  of  the  man's  right  wrist,  insomuch 
that  he  had  afterward  found  particles  of  the  other's 
cuticle  under  his  finger  nails.  He  had  let  the  fellow  go, 
however,  and  Brown's  and  Donnelly's  purpose  in  now 
taking  Schwitofsky  before  the  chauffeur  was  that  the 
latter  might  identify  him  as  the  man  with  whom  he  had 
had  the  struggle  in  the  street. 

"//  this  is  the  man/'  said  the  chauffeur,  according  to 
Brown,  "he'll  have  the  marks  of  my  finger  nails  on  his 
wrist  all  right.  It  was  only  ten  days  ago  that  I  made 
'em,  but  I'll  bet  that  they'll  last  a  year." 

1 1  Did  he  find  the  marks  ? "  I  asked  Brown. 

"I  don't  think  he  did,"  replied  the  detective. 

"Well,  how  can  Schwitofsky  be  the  man  the  chauffeur 


104  TWENTY  YEARS  IN  STATE'S  PRISON 

took  the  revolver  from,  if  lie  hasn't  got  those  marks?"  I 
inquired. 

"Perhaps  he  did  have  them;  I'm  not  sure,"  said 
Brown. 

On  being  further  questioned,  Brown  finally  said :  "  Well, 
I'll  give  the  prisoner  the  benefit  of  the  doubt;  we  didn't 
find  any  marks." 

Reflecting  before  visiting  his  office  that  morning  upon 
the  brilliant  detective  work  Deputy  Commissioner  Dough- 
erty would  probably  perform  in  solving  the  Schwitofsky 
mystery,  I  had  been  particularly  interested  in  the  con- 
jecture as  to  how  he  would  go  about  ascertaining  whether 
or  not  relations  existed  between  the  proprietor  of  the 
tailor's  shop  and  Kinsler  and  Duggan  or  either  of  them. 
I.  was  enlightened  during  the  examination  of  Duggan. 

"Do  you  know  Theodore  B.  Dale  of  71  West  Forty- 
fifth  Street?"  demanded  Dougherty  in  the  course  of  his 
questioning. 

' '  No,  sir, ' '  responded  Duggan. 

When  the  policemen  and  detectives  had  gone  Dougherty 
said  to  me:  "Now  you  see,  not  one  of  these  men  knew 
what  he  came  here  for  until  I  began  to  ask  him  questions, 
and  each  one  answered  every  question  asked  him  without 
hesitation. ' ' 

I  could  only  reply  that  if  they  were  able  to  remember 
all  the  cases  they  had  been  involved  in  during  the  prev- 
ious three  years,  including  circumstances,  dates,  street 
numbers  and  hours  and  minutes,  as  well  as  they  did  that 
of  Schwitofsky,  each  one  was  qualified  to  rival  Macaulay 
in  mnemonics.  There  is  not  the  slightest  doubt  in  my 
mind  that  each  man  had  been  informed  what  he  was  sum- 
moned to  headquarters  for,  and  that  he  had  prepared 
himself  for  the  ordeal — if  it  may  be  called  that. 

Left  alone  with  the  deputy  commissioner  and  Lieuten- 
ant Riley,  they  seemed  surprised  and  even  a  trifle  hurt 
that  I  should  still  consider  that  there  was  any  possibility 


TWENTY  YEARS  IN  STATE'S  PRISON  105 

that  Schwitof  sky  was  not  the  Dale  burglar,  but  they  never- 
theless inquired  whether  I  could  suggest  further  research. 
I  thought  that  the  character  of  the  establishment  at  71 
West  Forty-fifth  Street  might  be  ascertained  with  a  view 
to  more  light  on  the  subject  under  investigation,  and  that 
the  chauffeur  (of  whose  identity  I  was  then  unaware,  and 
which  I  afterward  established  myself)  who  had  stopped 
the  escaping  criminal  and  scraped  the  skin  from  his 
wrists,  ought  to  be  found.  Dougherty  and  Eiley  agreed 
that  that  might  be  worth  while,  and  I  was  instructed  to 
come  to  headquarters  again  at  noon  on  Saturday. 

When  Saturday  noon  and  I  arrived  at  police  head- 
quarters, Eiley  made  his  report.  He  had  gone  up  to  71 
West  Forty-fifth  Street  the  day  before,  announced  him- 
self as  from  the  Police  Department,  and  had  asked  Dale 
whether  his  house  was  reputable,  afterward  sending  him 
out  of  the  room  and  asking  the  same  question  of  three 
of  his  employes.  Dale  and  the  others  had  one  and  all 
replied  in  the  affirmative,  and  Eiley  had  departed,  having 
put  the  tailor  on  his  guard  as  to  a  possible  investigation 
of  his  premises,  and  thru  him  whoever  might  have  been 
aiding  and  abetting  him  in  offenses  against  the  law. 
Eiley  had  not  been  able  to  find  the  chauffeur,  but  prom- 
ised to  concentrate  his  intelligence  upon  the  task  at  once. 

KUHNE    IN    CHAEGE. 

Informing  'Commissioner  Waldo  of  the  manner  in  which 
Dougherty  was  conducting  the  Schwitofsky  investigation, 
the  matter  was  promptly  taken  out  of  his  hands  and 
put  into  those  of  Acting-'Captain  August  Kuhne,  the 
head  of  the  Brooklyn  detective  bureau.  In  assigning 
this  duty  to  him,  Waldo  told  the  acting  captain  in  my 
presence  that  he  was  going  to  promote  him  to  a  full 
captaincy  very  soon,  and  in  his  delight  Kuhne  bubbled 
over  with  enthusiasm  about  the  Schwitofsky  case.  The 
same  evening,  so  he  reported  to  me  the  next  morning, 


106  TWENTY  YEARS  IN  STATE'S  PRISON 

he  and  Detective  Henry  C.  Dukeshire,  also  of  the  Brook- 
lyn bureau,  went  up  to  Forty-fifth  Street  and,  without 
discovering  anything  untoward,  watched  No.  71  from 
9  o'clock  until  after  midnight — altho  I  had  informed  him 
of  Eiley's  diplomatic  visit.  That  day  Kuhne  and  Duke- 
shire  obtained  ingress  to  the  house  as  building  inspec- 
tors, and  saw  nothing  wrong.  They  also  looked  up  the 
parents  of  the  seventeen-year-old  seamstress  who  had 
testified  at  Schwitof sky's  trial,  and  found  them  to  be 
respectable,  and  that  the  girl  had  left  her  situation  be- 
cause of  the  notoriety  attaching  to  the  place  after  the 
burglar's  visit. 

A  visit  to  the  detective  bureau  at  police  headquarters 
had  the  effect  of  talcing  the  edge  from  Kuhne 's  zeal 
in  the  Schwitof  sky  inquiry.  ''Bill  Brown,"  said  Kuhne 
to  me  the  next  time  I  saw  him,  "is  one  of  the  squarest 
men  in  the  police  department,  and  I  am  sure  that  he  is  in- 
capable of  taking  part  in  a  frame-up.  I  made  him  give 
me  his  honest  opinion  in  the  matter,  and  he  said:  'If 
there  ever  was  a  man  justly  convicted  of  a  crime,  it  is 
this  Schwitof  sky. '  Brown  says  that  Gelsky  gave  him 
the  clue  whereby  he  found  Schwitofsky  without  the 
slightest  suggestion  on  his  part,  and  he  simply  followed 
it  up  and  landed  him.  Donnelly  and  Dungate,  who  were 
on  the  case  with  Brown,  were  scarcely  more  than  boys; 
they  had  just  come  into  the  detective  bureau  at  that  time 
and  that  was  almost  their  first  case." 

Altho  "scarcely  more  than  boys,"  Dungate  and  Don- 
nelly were  first  grade  detectives,  each  something  like 
thirty  years  of  age,  who  might  have  learned  some  guile 
during  the  experiences  that  qualified  them  for  the  de- 
tective bureau.  Everyone  who  knew  Detective  Brown 
seemed  to  have  the  same  high  opinion  of  him.  I  had 
first  heard  it  expressed  by  Daniel  E.  Kimball  of  the 
Prison  Association,  who  told  me  that  in  all  the  years 
that  he  had  known  that  officer  he  had  never  heard  a 


TWENTY  YEARS  IN  STATE'S  PRISON  107 

complaint  of  unfairness  against  him  from  a  prisoner. 
Brown  himself  said  to  me:  "In  the  twenty-six  years 
I  have  been  on  the  police  force,  this  is  the  first  arrest  I 
have  ever  made  that  has  been  questioned." 

I  was  unable  to  induce  Dougherty,  Kuhne,  Eiley  or 
Brown  to  take  any  interest  in  my  theory  that  if  the 
so-called  burglar  who  threatened  Dale  and  his  servants 
with  a  revolver  had  had  the  skin  torn  from  his  right 
wrist  by  the  chauffeur  who  took  the  weapon  away  from 
him,  Schwitofsky  must  bear  marks  of  the  operation  if 
he  were  the  criminal. 

And  there  the  investigation  ended  so  far  as  the  de- 
tectives were  concerned. 

Dougherty,  Kuhne  and  the  others  had  dared  to  burke 
this  investigation,  in  the  face  of  specific  orders  from 
Commissioner  Waldo  himself,  whom  they  knew  to  be 
anxious  to  learn  the  truth.  The  only  alternative  to  the 
proposition  is  that  they  are  dolts  and  bunglers — and  that 
is  not  their  reputation.  They  simply  would  not  pursue 
an  inquiry  that  promised  to  implicate  in  a  crime  any 
of  their  fellows  in  the  police  department,  and  they  did 
what  was  in  their  power  to  give  warning  to  all  con- 
cerned that  an  investigation  was  on — as  has  been  shown. 

'THE  JOURNALIST'  TAKES  CHABGE. 

I  now  suggested  to  Commissioner  Waldo  that  he  turn 
the  Schwitofsky  investigation  over  to  me,  giving  me 
power  to  examine  those  members  of  the  force  who  had 
been  concerned  in  the  electrician's  numerous  arrests. 
Waldo  at  once  instructed  his  secretary,  Winfield  R.  Shee- 
han,  to  summon  to  police  headquarters  such  members 
of  the  department  as  I  might  wish  to  interrogate,  and  to 
order  them  to  answer  any  questions  I  might  ask. 

Up  to  this  time  I  had  not  heard  the  name  of  Detective 
Talt  mentioned  in  connection  with  the  Schwitofsky  case. 
I  had  been  kept  in  ignorance  of  the  participation  in  the 
arrest  of  Gelsky  of  that  one  of  the  four  detectives  en- 


108  TWENTY  YEAES  IN  STATE'S  PRISON 

gaged  in  his  pursuit  who  Schwitofsky  asserts  threatened 
him  in  the  street,  and  whom  Gelsky  charges  with  having 
coerced  him  into  the  false  identification  of  Schwitofsky 
as  the  Dale  burglar !  Talt  was  the  last  one  of  the  quar- 
tette whom  I  questioned  in  the  matter  of  the  coercion  of 
Gelsky,  and  I  did  not  see  him  until  two  weeks  after  Com- 
missioner Waldo  had  first  set  the  investigation  in  motion. 
Before  I  had  asked  him  a  question,  Talt  volunteered 
the  information:  "I  never  heard  that  there  was  any 
trouble  about  the  Schwitofsky  case  until  a  day  or  two 
ago,  when  Lieutenant  Brown  told  me  that  you  would 
probably  ask  me  about  Gelsky 's  arrest.  He  said  that 
he  hadn't  mentioned  the  matter  before  because  there  was 
no  use  in  my  worrying  as  well  as  himself." 

Why  either  of  the  detectives  should  have  worried  about 
an  investigation  in  the  Schwitofsky  matter  unless  some 
phase  of  it  was  discreditable  to  them,  is  for  them  to 
explain. 

Talt  told  me  that  his  only  commerce  with  Gelsky  was 
to  buy  him  cigarettes  and  to  promise  him  help  in  his 
own  difficulties  with  the  law,  provided  he  would  assist 
the  detectives  in  getting  the  Dale  burglar.  In  his  letter 
to  Dr.  Goldstein,  Gelsky  had  said  that  Dungate  was  the 
man  who  had  shown  him  Schwitof sky's  photograph  and 
declared  that  it  had  been  recognized  by  Dale;  but,  as 
Dungate  told  me  that  he  had  not  seen  Gelsky  since  his 
arrest,  I  concluded  after  my  talk  with  Talt  that  Gelsky 
— provided  that  he  was  attempting  to  tell  the  truth — had 
confused  the  two  men,  as  both  might  answer  the  same 
general  description.  To  straighten  this  and  other  mat- 
ters out  I  visited  Gelsky  at  the  Elmira  Eef  ormatory,  and 
had  a  half  an  hour  talk  with  him  in  the  presence  of  the 
head  keeper  of  the  institute,  John  D.  Driscoll. 

While  a  thoroly  depraved  young  reprobate,  Gelsky  is 
an  intelligent  youth.  When  I  suggested  that  he  had  mis- 
taken Dungate  for  Talt,  he  said : 


109 

i  i  It  was  Dungate  that  showed  me  the  photograph.  He 
and  Talt  are  about  the  same  size,  but  otherwise  they 
are  not  much  alike.  Talt  is  older  than  Dungate,  and  is 
stuck  on  himself,  while  Dungate  is  a  good  natured,  free 
and  easy  young  fellow,"  which  is  a  fairly  good  differen- 
tiation between  the  two. 


GKLSKY  S   STORY. 

Gelsky's  account  of  the  coercion  incident  is  that  he 
was  alone  in  a  room  in  the  57th  Street  courthouse,  with 
Dale,  the  complainant  against  him,  and  the  four  detec- 
tives, Brown,  Talt,  Dungate  and  Donnelly.  Here  Dun- 
gate  showed  him  the  photograph,  and  told  him  that  Dale 
had  recognized  it  as  that  of  his  unwelcome  visitor  of 
January  19th,  but  did  not  pursue  the  subject  further. 
Afterward  Talt,  who  had  been  very  attentive  to  him, 
and  had  purchased  him  cigarettes  and  promised  to  see 
that  he  was  discharged  on  the  blackmail  complaint  if  he 
helped  apprehend  the  Dale  burglar,  took  him  down  to 
the  cells.  On  the  way  his  hitherto  benevolent  guardian 
suddenly  made  a  violent  assault  upon  him  and  threatened 
him  with  future  chastisement,  dire  and  awful,  Gelsky 
asserts,  unless  he  should  promise  to  identify  the  Schwit- 
ofsky  photograph  as  that  of  the  bogus  telephone  re- 
pairer. Being  badly  frightened,  Gelsky  says,  and  having 
heard  of  prisoners  being  mercilessly  punished  in  their 
cells  by  New  York  policemen,  he  made  the  required 
promise ;  and,  when  Brown  came  to  his  cell  afterward  he 
gave  him  the  information  that  led  to  the  capture  of 
Schwitofsky  at  the  Mills  Hotel  in  Rivington  Street. 

Gelsky  told  me  that  he  had  previously  seen  Schwitofsky 
at  the  Mills  Hotel,  where  he  was  known  as  "the  checker 
fiend,"  by  reason  of  his  fondness  for  the  game.  He 
thought  that  he  might  have  once  played  a  game  of 
checkers  with  him,  but  that  would  have  been  the  extent 


110  TWENTY  YEARS  IN  STATE'S  PRISON 

of  their  acquaintance.  Gelsky 's  story  of  the  alleged  Dale 
burglary  is  that  the  tailor  had  given  him  a  demand  note 
for  $100  on  account  of  the  injuries  he  had  sustained  on 
the  occasion  of  their  first  meeting.  He  had  tried  several 
times  to  get  Dale  to  pay  the  $100,  without  success,  and 
on  the  morning  of  January  19th  had  given  the  note  with 
a  letter  demanding  its  payment  to  a  partner  of  his,  and 
sent  him  to  collect  it.  As  Dale  had  become  suspicious  of 
strangers,  the  partner  pretended  to  be  a  telephone  re- 
pairer in  order  to  obtain  access  to  the  house.  His  part- 
ner, Gelsky  says,  was  about  the  size  and  build  of  Sehwit- 
ofsky,  but  only  24  years  of  age.  "He  works  with  his 
brains,"  the  youth  said  proudly,  elevating  him  above 
Schwitofsky,  who,  as  an  electrician,  works  with  his  hands. 
Gelsky  declared  that  he  saw  the  gentleman  who  works 
with  his  brains  off  for  Chicago  on  the  morning  of  the 
day  he  (Gelsky)  was  arrested.  "I  wanted  him  to  tackle 
Dale  the  second  time,"  he  said,  "but  he  knew  more  than 
I  did.  He  knew  when  to  stop,  and  I  didn  't. ' ' 

Gelsky  told  me  that,  knowing  his  partner  to  be  beyond 
reach  of  the  New  York  police,  he  described  him  accurately 
to  the  detectives  before  he  was  shown  Schwitof sky's 
photograph.  "I  even  told  them  about  some  weals  on  his 
arms,"  he  said. 

When  Gelsky  had  been  taken  back  to  his  cell,  I  asked 
Driscoll  what  he  thought  of  the  boy's  story. 

"He's  a  tough  citizen,  all  right,"  replied  the  head 
keeper,  "but  he  was  telling  the  truth  that  time." 

It  was  not  until  I  was  back  in  New  York  that  the 
significance  of  the  "weals"  on  the  arms  of  Gelsky 's 
partner,  whom  he  claims  to  be  the  real  Dale  burglar, 
occurred  to  me.  I  at  once  wrote  to  Mr.  Driscoll,  asking 
him  to  inquire  of  Gelsky  if  he  knew  how  his  friend  came 
by  those  weals.  Driscoll  replied  as  follows : 

"Gelsky  makes  the  following  statement:  'That  his 
partner  after  leaving  the  Dale  home  was  stopped  by  two 


TWENTY  YEARS  IX  STATE'S  PRISON  111 

auto  drivers,  and  that  he  had  a  revolver  up  his  sleeve 
which  he  dropped  in  an  apartment  telephone  booth.  This 
gun  caused  the  'welt'  or  'weal'  on  his  partner's  wrist, 
he  thinks." 

By  the  " apartment  telephone  booth"  Gelsky  means 
the  taxicab  starter's  little  office  on  the  sidewalk  in  front 
of  the  Hotel  Webster.  The  ''weal"  or  "welt"  was 
caused  by  the  chauffeur's  finger  nails.  Gelsky 's  partner 
had  preferred  to  tell  him  that  he  dropped  the  revolver 
rather  than  it  was  taken  away  from  him,  it  seems. 

Gelsky  had  told  me  in  the  Keformatory  that  he  had 
informed  Neilsen  Olcott  (2nd),  whom  Judge  0 'Sullivan 
had  assigned  as  counsel  for  him,  that  he  had  given  false 
evidence  against  Schwitofsky,  and  that  Olcott  had  sent 
the  information  to  the  other's  lawyer.  On  mentioning 
this  circumstance  to  Mr.  Olcott,  on  whom  I  called  at  his 
office,  he  recalled  the  case  immediately.  1 l  The  first  thing 
Gelsky  said  to  me  when  I  went  to  see  him  in  the  Tombs 
after  being  assigned  to  defend  him,"  Olcott  told  me, 
"was  that  he  had  got  an  innocent  man  into  grave  trouble, 
and  that  he  wanted  to  repair  that  injury  more  than  to 
clear  himself.  He  was  so  insistent  in  the  matter  that  I 
wrote  to  the  injured  man's  lawyer,  William  D.  Bosler 
about  it.  I  got  an  acknowledgment  of  the  letter,  but 
never  heard  from  him  in  the  matter  again. 

"The  boy,  Gelsky,"  Olcott  continued,"  was  a  rascal, 
but  his  anxiety  to  clear  this  man,  Schwitofsky,  was  so 
strong  that  I  almost  took  a  liking  to  him.  His  remorse 
in  that  instance  seemed  to  me  his  one  redeeming  trait. 
He  never  saw  me  that  he  did  not  ask  me  if  I  couldn't 
do  something  more  than  I  had  done  to  prove  Schwitof- 
sky's  innocence,  and  tho  he  lied  and  contradicted  himself 
about  almost  every  other  point  that  came  up  in  his  case, 
he  always  told  the  same  story  about  having  given  up 
the  wrong  man  to  the  police. ' ' 

The  story  Gelsky  told  to  Olcott  about  his  being  coerced 


112  TWENTY  YEARS  IN  STATE'S  PRISON 

into  the  identification  of  Schwitof sky's  photograph  by 
Talt  is  the  same  that  he  told  me.  Olcott's  letter  to 
Bosler,  which  was  dated  April  llth,  was  as  follows : 

"Dear  Sir :  I  am  the  attorney  for  Leo  Gelsky,  who  has  just  been 
sentenced  to  Elmira  under  an  indictment  for  blackmail,  on  which  he 
pleaded  guilty.  I  understand  that  you  are  the  attorney  for  a  man  in  the 
Tombs,  whose  name  I  do  not  know,  but  who,  my  client  tells  me,  has 
been  implicated  thru  some  statement  of  his.  He  informs  me  that  the 
statement  is  untrue,  and  that  he  would  be  very  glad  to  do  anything 
in  his  power  to  right  the  matter,  and  is  entirely  willing  to  testify  in 
your  client's  favor,  should  you  so  desire. 

"You  can  see  from  the  ambiguous  tone  of  my  letter  that  I  am  un- 
familiar with  the  case  of  which  you  are  in  charge,  but  I  have  no  doubt 
that  this  letter  will  be  more  intelligible  to  you  than  it  is  to  me." 

Mr.  Bosler  remembered  the  incident  of  the  letter  from 
Olcott,  when  I  saw  him  the  same  day.  The  letter  had 
been  received  while  he  was  away  from  his  office,  ill  in  a 
hospital,  and  had  been  acknowledged  by  his  secretary. 
He  told  me  that  he  had  not  considered  it  worth  while 
to  send  the  information  that  Gelsky  was  prepared  to 
testify  at  the  Schwitofsky  trial  to  Mr.  Carpenter,  when 
that  lawyer  succeeded  him  as  counsel  in  the  case,  how- 
ever. Bosler  frankly  confirmed  Schwitof  sky 's  statement 
in  one  of  his  letters  to  Judge  0 'Sullivan,  that  he  had 
told  his  client  that  he  would  not  spend  time  and  money 
in  looking  up  his  witnesses.  "He  had  an  awful  record, 
and  I  believe  that  he  was  more  than  half  crazy,"  ob- 
served the  lawyer.  "I  was  glad  when  some  one  else  was 
assigned  to  defend  him  while  I  was  ill." 

A  VETERAN'S  OPINION. 

I  cited  Schwitof  sky's  case  to  a  veteran  journalist, 
who  has  the  reputation  of  knowing  more  about  the  New 
York  police  force  than  most  of  the  men  connected  with 
the  department.  "Kinsler  and  Duggan,"  he  told  me, 
"would  consider  themselves  as  acting  quite  within  the 
sphere  of  duty  in  arresting  your  man  whenever  they  came 


TWENTY  YEAHS  IX  STATE'S  PRISON  113 

across  him.  He  was  an  ex-convict,  and  in  their  minds  a 
professional  criminal,  doubtless.  Detectives  often  make1 
arrests  of  men  who  they  know  cannot  'get  back'  at  them, 
even  if  they  are  not  criminals,  merely  for  the  sake  of 
adding  to  the  number  of  arrests  to  their  credit.  Some- 
times a  plainclothes  man,  who  may  have  spent  the  night 
playing  poker,  or  even  at  home  in  bed,  will  arrest  an 
inoffensive  crook  on  his  way  to  headquarters  and  trump 
up  a  charge  against  him,  pretending  that  he  has  spent 
hours  on  the  trail  in  order  to  account  for  his  time. 

"As  to  the  arrest  in  Harlem  being  a  i frame-up,'  that  is 
quite  possible.  Kinsler  and  Duggan  were  out  for  a 
record,  and  if  they  could  put  a  professional  criminal 
behind  the  bars,  and  at  the  same  time  gain  repute  for 
themselves,  they  would  probably  consider  that  they  were 
doing  a  public  service  in  laying  the  criminal  by  the  heels, 
regardless  of  the  method  of  doing  it.  The  same  proposi- 
tion goes  with  the  Dale  burglary,  but  under  different 
conditions:  Four  detectives  in  this  instance  devote  ten 
days  to  the  apprehension  of  Gelsky  and  his  partner. 
They  get  Gelsky,  and  he  tells  them  that  the  other  offendei* 
is  beyond  their  reach.  It  is  not  to  their  credit  that  he 
has  escaped  them,  and  one  of  them  at  least  knows  of  an 
ex-convict,  whom  we  will  say  he  believes  to  be  a  dan- 
gerous man,  at  large  in  the  community,  who  has  threat- 
ened to  disgrace  two  brother  detectives.  Why  not  put 
up  a  job  on  the  ex-convict,  thus  not  only  obtaining  credit 
for  the  arrest  of  the  Dale  burglar,  but  getting  a  danger- 
ous criminal  out  of  the  way,  and  likewise  preventing  his 
informing  on  their  brethren  ? ' ' 

THE  ABREST  IN   1908. 

In  considering  pros  and  cons  as  to  whether  Schwitof- 
sky's  arrest  was  the  result  of  a  police  "frame-up,"  we  are 
justified  in  assuming  that  Duggan  at  least  was  willing  to 


114  TWENTY  YEARS  IN  STATE'S  PRISON 

send  him  to  prison  on  manufactured  evidence,  since  that 
is  a  matter  of  record  in  the  identification  book  at  the 
Tombs.  Further,  Schwitofsky  says  that  he  saw  Kinsler 
point  him  out,  through  the  space  between  an  open  door 
and  its  frame  in  the  Centre  Street  police  court,  and  that 
the  man  to  whom  he  was  thus  pointed  out  afterward 
identified  him  as  a  person  he  had  seen  in  the  hall  of  an 
apartment  house  that  had  been  robbed. 

If  there  was  a  ' '  frame-up ' '  in  this  instance,  there  were, 
besides  Kinsler  and  Duggan,  the  four  other  central  office 
detectives  comprising  with  them  the  Harlem  burglary 
squad,  concerned  in  it — L'Heureux,  Geary,  Mott  and 
Quick.  If  Schwitof sky's  story  is  correct,  he  was  arrested 
on  Lenox  Avenue  between  One  Hundred  and  Sixteenth 
and  One  Hundred  and  Seventeenth  Streets  about  mid- 
night, while  in  the  company  of  a  "stool  pigeon"  (em- 
ployed by  Kinsler  and  Duggan)  who  had  accompanied 
him  to  the  Bowery  earlier  in  the  evening,  and  had  been 
with  him  when  he  purchased  the  pistol,  the  putty  knife 
and  the  pliers  for  use  in  his  store,  which  appeared  in 
the  charges  against  him  as  concealed  weapons  and  bur- 
glars' tools.  The  stolen  property  in  his  possession  upon 
which  he  was  indicted  consisted  of  two  inexpensive  stick- 
pins, tho  a  hand  mirror  with  a  white  metal  back,  and 
fourteen  copper  coins,  were  found  upon  Mm  that  were 
also  claimed  by  the  owner  of  the  other  articles.  The  pins, 
the  mirror  and  the  coins,  according  to  Schwitofsky,  had 
been  given  to  him  by  his  partner,  who  had  purchased 
them  a  few  days  before  from  a  pedlar  in  their  store  in 
the  presence  of  several  customers.  The  detectives  record 
the  arrest  variously  as  occurring  at  two,  two-thirty,  two- 
thirty-five,  and  three  o'clock  in  the  morning. 

Schwitofsky  maintains  that  the  "stool  pigeon"  had 
communicated  with  Kinsler  and  Duggan  after  leaving 
him  in  the  Bowery,  and  had  afterward  waited  for  him 
at  the  Spring  Street  entrance  to  the  subway  to  accom- 


TWENTY  YEAES  IN  STATE'S  PRISON  115 

pany  him  uptown  and  deliver  him  into  the  hands  of  his 
enemies,  with  the  pistol,  the  putty  knife  and  the  pliers  in 
his  possession;  that  a  mask  that  he  was  said  to  have 
secreted  under  his  hat  had  been  produced  either  by  his 
companion  or  the  detectives  at  the  moment  of  his  arrest, 
and  that  the  pistol,  putty  knife  and  pliers  were  un- 
wrapped from  the  original  package  afterward.  If  Schwit- 
of sky's  story  is  correct,  the  detectives  must  have  had 
him  in  seclusion  somewhere  for  a  couple  of  hours,  for, 
according  to  the  police  blotter,  he  did  not  reach  the  East 
One  Hundred  and  Twenty-sixth  Street  station  (where  he 
says  he  arrived  in  an  unconscious  condition  as  the  result 
of  the  blow  from  a  blackjack)  until  after  2.35  in  the 
morning. 

I  heard  Duggan 's  version  of  the  capture  of  Schwitof- 
sky  as  he  related  it  to  Deputy  Commissioner  Dougherty 
in  the  latter 's  office,  and  I  subsequently  examined  separ- 
ately at  police  headquarers  the  five  other  detectives  who 
share  with  him  the  honors  of  the  arrest  on  the  records 
of  the  department.  Kinsler  and  Duggan  agreed  in  the 
statements  that  they  were  alone  when  they  arrested 
Schwitof  sky,  and  that  he  had  no  companion  at  the  time ; 
that  Duggan  took  the  pistol  from  the  outside  right  hand 
overcoat  pocket  of  the  prisoner,  and  that  neither  it,  the 
pliers  nor  the  putty  knife  were  done  up  in  a  parcel ;  that 
neither  of  them  struck  the  prisoner  with  a  blackjack  or 
anything  else,  and  that  the  other  detectives  did  not  arrive 
on  the  scene  until  summoned  by  Kinsler 's  whistle. 

The  six  detectives  agree  on  the  three  main  points,  es- 
sential to  prove  that  Schwitofsky  was  intent  on  a  burg- 
larious errand  that  night — that  the  arrest  was  at  an 
hour  when  no  honest  man  would  be  in  the  streets  without 
some  special  reason;  that  he  had  a  mask  on  his  person, 
and  carried  a  loaded  pistol  and  burglars'  tools — that  is 
the  putty  knife  and  the  pliers;  that  he  was  beyond  One 
Hundred  and  Eighteenth  Street,  the  thoroughfare  in 


116  TWENTY  YEARS  IN  STATE'S  PRISON 

which  they  assigned  him  a  domicile.  They  also  agree 
that  he  was  alone. 

Schwitofsky  contends  that  it  was  about  midnight  that 
he  was  arrested;  that  he  was  on  his  way  from  the  sub- 
way station  at  One  Hundred  and  Sixteenth  Street  to  his 
home  over  the  delicatessen  store  in  One  Hundred  and 
Seventeenth  Street  near  Second  Avenue;  that  the  pistol, 
and  the  so-called  burglars'  tools  were  respectively  for 
protection  and  use  in  his  store,  and  that  they  were  in  his 
overcoat  pocket  in  the  package  in  which  they  had  been 
done  up  on  being  purchased  that  evening;  that  he  was 
accompanied  by  the  ' '  stool  pigeon, ' '  who  he  believed  had 
notified  the  detectives  that  he  would  come  up  in  the  sub- 
way with  their  prospective  victim. 

If  we  accept  the  story  of  the  detectives,  we  must  pic- 
ture Schwitofsky  starting  out  on  that  March  morning  on 
burglary  bent,  wearing  a  part  of  the  proceeds  of  another 
burglary  he  had  committeed  in  the  same  neighborhood 
a  few  days  before  in  the  shape  of  the  stickpins  in  his  tie 
and  muffler,  also  with  a  hand  mirror  and  fourteen  copper 
coins  stolen  on  the  same  occasion  in  his  pocket,  and  carry- 
ing a  mask  on  his  head  in  such  fashion  that  the  accidental 
displacement  of  his  hat,  that  might  have  been  effected 
in  any  one  of  a  score  of  different  ways,  would  proclaim 
him  to  any  chance  spectator  as  bound  on  a  criminal  er- 
rand. If  the  stickpins  and  the  hand  mirrors  were  loot 
from  a  burglary  he  had  committed  a  fortnight  before 
within  a  few  blocks  of  the  place  where  he  was  arrested, 
is  it  probable  that  Schwitofsky  would  go  forth  between 
two  and  three  o'clock  in  the  morning  to  commit  other 
burglaries  with  these  articles  on  his  person,  so  that  in 
the  event  of  capture  the  previous  crime  might  be  fastened 
upon  him? 

The  circumstance  that  Schwitofsky  was  wearing  jew- 
elry that  had  only  recently  been  stolen  from  an  apartment 
in  the  immediate  vicinity,  proves  that  he  came  by  if 


TWENTY  YEARS  IN  STATE'S  PRISON  117 

honestly.  Men  familiar  with  the  habits  of  burglars  in- 
form me  that  these  predal  craftsmen  do  not  make  a  prac- 
tice of  wearing  their  loot  conspicuously  on  their  outer 
garments  in  the  localities  looted,  at  least  not  until  the 
hue  and  cry  attendant  upon  the  looting  is  over.  Had 
Schwitofsky  been  a  professional  criminal  and  had  he 
stolen  the  scarfpins,  he  would  have  known  that  their  des- 
cription was  in  the  hands  of  the  police  and  would  have 
disposed  of  them  as  soon  after  they  came  into  his  pos- 
session as  possible. 

To  my  mind  Schwitof sky's  entire  story  of  the  events 
of  the  night  of  March  6th,  1908,  carries  evidence  of 
truth  in  the  very  primitivenss  of  its  construction.  As: 
suming  him  to  have  been  manufacturing  a  defense,  his 
story  would  have  been  less  involved,  and  therefore  less 
in  need  of  collateral  confirmation  if  he  had  claimed  thaf 
Kinsler  and  Duggan  imposed  the  pistol,  the  pliers,  the 
putty  knife  and  the  scarfpins,  as  well  as  the  mask,  upon 
him  at  the  moment  of  arrest,  rather  than  only  the  mask. 
It  is  as  conceivable  that  the  detectives  " planted"  all 
these  articles  upon  him  as  that  it  was  the  mask  alone. 

Schwitofsky  says  that  he  was  struck  with  a  blackjack 
when  he  was  arrested,  and  one  of  the  detectives  admitted 
it  to  me.  Further,  the  records  of  the  penitentiary  show 
that  he  was  transferred  to  the  hospital  department  soon 
after  being  admitted  to  the  institution,  suffering  from 
injuries  to  the  head,  probably  caused  by  a  blow.  He 
says  that  he  was  struck  because  he  attempted  to  assult 
his  companion,  the  "stool  pigeon."  The  detectives  de- 
clare that  there  was  no  "stool  pigeon"  nor  anyone  else 
in  his  company  when  he  was  arrested,  and  that  he  sub- 
mitted without  a  struggle.  Had  the  detectives  allowed 
the  presence  of  the  "stool  pigeon"  there  would  have 
been  an  excuse  for  striking  the  prisoner,  since  he  admits 
having  assaulted  him.  However,  there  would  have  been 
a  compensating  disadvantage  in  that  it  would  have  been 


118  TWENTY  YEARS  IN  STATE'S  PBISON 

necessary  to  use  the  aforementioned  bird's  evidence  in 
the  event  of  trial,  and  he  would  probably  not  have  been 
able  to  undergo  cross-examination  in  court  on  the  events 
of  the  previous  evening.  On  the  whole  the  case  was  a 
better  one  from  the  detectives'  point  of  view  with  the 
"stool  pigeon"  eliminated. 

LETTEBS    MYSTERIOUSLY    MISLAID. 

So  much  for  the  stories  of  both  parties  to  the  contro- 
versy— Schwitofsky  on  the  one  side  and  the  detectives  on 
the  other.  It  is  the  discrepancies  in  the  police  records 
of  the  case,  and  the  conduct  of  Kinsler  and  Duggan  after 
the  arrest  that  give  rise  to  the  belief  that  there  was  a 
crooked  scheme  on  foot.  For  instance,  on  the  23rd  of 
November  following  the  arrest  the  then  District  At- 
torney, William  Travers  Jerome,  wrote  to  the  then  Police 
Commissioner,  General  Theodore  Bingham,  asking  his 
attention  to  facts  reflecting  upon  the  police  management 
of  the  case,  which  was  in  the  hands  of  Kinsler,  Duggan 
and  Geary,  as  follows: 

"Agreeably  to  your  conversation  with  Mr.  Ely  of  my  staff,  I  send 
you  the  following  information  with  respect  to  the  case  of  The  People 
vs.  Alfred  Gerber,  indicted  for  burglary  in  the  3rd  degree,  in  which 
Mrs.  Elma  J.  Ellsworth  is  the  complaining  witness.  The  defendant  was 
sentenced  to  the  Penitentiary  at  Blackwell's  Island  for  six  months  in  the 
Court  of  Special  Sessions  on  the  7th  of  April,  1908,  and  he  was  trans- 
ferred to  the  State  Hospital  for  the  Insane  at  Matteawan  on  the  15th 
of  May,  1908.  A  bench  warrant  was  sent  to  the  Superintendent  of  such 
hospital  with  him  to  insure  his  return  here  should  his  condition  war- 
rant it.  He  was  indicted  for  having  burglarized  the  apartment  on 
premises  113  West  115th  street,  occupied  by  the  complaining  witness,  on 
or  about  the  19th  day  of  February,  1908.  The  amount  of  property 
stolen  was  estimated  at  $1800,  representing  jewelry,  clothing,  under- 
wear, etc. 

"None  of  the  property  was  ever  recovered  except  two  stickpins,  a 
small  silver  mirror  and  some  coins.  These  were  found  upon  the  per- 
son of  defendant  when  he  was  arrested.  The  officers  in  the  case  were 
Kinsler,  Duggan  and  Geary.  The  facts  are  as  follows: 

"On  or  about  13th  of  February  1908  the  complaining  witness  left 


TWENTY  YEAES  IN  STATE'S  PRISON  119 

her  apartment  and  went  out  of  town.  She  was  gone  until  the  20th ; 
between  the  13th  and  the  20th  days  of  February  her  premises  were 
broken  and  entered  and  the  property  above  referred  to  was  taken.  Im- 
mediately after  her  return  she  interviewed  the  janitor,  who  told  three 
different  stories  as  regards  the  time  when  the  burglary  occurred.  He 
stated  in  her  presence  and  in  the  presence  of  Mr.  Reise,  1st,  that  the 
premises  had  been  entered  on  Wednesday,  and  he  told  John  Mendel,  a 
brother-in-law  of  the  complaining  witness,  that  the  premises  had  been 
broken  open  on  Tuesday  night,  and  he  told  a  certain  other  person,  a 
vegetable  vendor,  whose  name  the  complaining  witness  does  not  remem- 
ber, but  who  can  be  produced,  that  the  premises  were  broken  open  on 
Monday  night.  According  to  the  complaining  witness  the  janitor,  whose 
name  is  Sharley  or  Charley,  was  employed  during  her  absence  from  her 
apartment.  The  complaining  witness  told  the  officers  above  referred  to, 
namely  Kinsler,  Duggan  and  Geary,  about  the  conflicting  statements 
made  by  the  janitor  on  the  evening  of  February  20th,  1908,  upon  her 
return,  and  said  that  she  thought  the  janitor  ought  to  be  interrogated 
because  of  them.  The  complaining  witness  also  told  me  that  Kinsler 
informed  her  that  he  knew  this  janitor  and  that  his  picture  was  in  the 
Rogues'  Gallery.  As  a  matter  of  fact,  however,  so  far  as  the  complain- 
ing witness  knows,  or  so  far  as  any  one  in  this  office  can  ascertain,  the 
officers  never  did  anything  toward  apprehending,  examining  or  produc- 
ing the  said  janitor,  as  a  tcitness,  either  before  the  City  Magistrate 
when  Gerber  icas  held,  or  at  any  other  time;  nor  did  they  ever  produce 
any  witness  at  the  District  Attorney's  office  except  two  persons  who 
knew  nothing  about  the  burglary  and  only  located  the  defendant  as 
lurking  about  the  complaining  witness's  premises. 

"It  seems  to  me  that  this  matter  sJiould  be  investigated  because  of 
the  amount  of  the  property  involved;  because  of  the  failure  to  report, 
and  became  of  tJic  failure  to  look  up  and  apprehend  the  janitor  of  the 
premises." 

Kinsler  and  Duggan,  who  were  both  able  and  am- 
bitious men,  working  hard  for  promotion,  had  been  sent 
to  Harlem  at  the  head  of  the  squad  comprising  the  four 
other  detectives  for  the  purpose  of  suppressing  a  burg- 
lary epidemic  there.  Why  should  they  have  been  so 
lax  in  following  the  clue  relating  to  the  janitor  of  the 
apartment  where  the  burglary  in  question  had  occurred, 
particularly  as  Kinsler  knew  that  the  fellow's  photo- 
graph was  in  the  rogues'  gallery?  The  only  complete 
answer  to  that  question  is  that  they  had  put  into  opera- 
tion a  scheme  to  ' 'frame  up"  Schwitofsky  as  the  crim- 


120  TWENTY  YEAES  IN  STATE'S  PRISON 

inal,  which  would  be  thrown  into  confusion  by  the  arrest 
of  another  suspect. 

The  letter  from  Jerome's  office  was  acknowledged  by 
Gen.  Bingham,  with  the  promise  that  "the  matter  will 
be  carefully  and  promptly  investigated."  In  ordinary 
circumstances  the  District  Attorney's  communication 
above  would  have  been  referred  to  Deputy  Commissioner 
Arthur  Woods,  who  was  then  at  the  head  of  the  De- 
tective Bureau,  or  to  Deputy  Commissioner  Bert  Han- 
son, who  had  charge  of  the  police  trials.  Neither  Gen. 
Bingham  nor  his  private  secretary  at  that  time,  Daniel 
E.  Slattery,  to  both  of  whom  I  showed  the  letter,  remem- 
bered anything  about  it — as  is  quite  natural  after  an 
interval  of  five  years.  Both  Mr.  Woods  and  Mr.  Hanson 
were  positive  that  it  had  never  been  referred  to  either 
of  them.  Former  Assistant  District  Attorney  James  E. 
Ely,  who  had  charge  of  the  prosecution  in  the  Ellsworth 
burglary  case,  recalled  the  letter  to  Gen.  Bingham  and 
the  fact  that  no  investigation  of  Kinsler,  Duggan  and 
Geary's  connection  with  the  matter  was  ever  reported 
to  him.  (He  also  recalled  the  fact  that  he  had  a  sus- 
picion at  the  time  that  the  failure  of  the  detectives  to 
arrest  the  janitor  mentioned  in  the  letter  indicated 
something  irregular  in  the  police  conduct  of  the  case.) 
The  fact  is  that  no  investigation  was  ever  made,  altho 
on  November  27th  Duggan  turned  in  a  routine  report 
of  the  Ellsworth  burglary  addressed  to  Mr.  Woods  which 
that  gentleman  does  not  remember  ever  to  have  seen. 

A  possibility  is  that  the  letter  from  the  District 
Attorney,  Gen.  Bingham 's  acknowledgment  of  it,  and 
Duggan 's  report  were  abstracted  from  the  files  at  police 
headquarters  and  not  returned  until  after  Gen.  Bing- 
ham was  out  of  office.  The  effect  of  the  removal  of 
these  documents  from  their  places  would  be  that,  not 
being  reminded  of  his  proposed  investigation  of  the  con- 
duct of  Kinsler,  Duggan  and  Geary  by  the  return  to  his 


TWENTY  YEARS  IN  STATE'S  PRISON  121 

desk  of  the  District  Attorney's  letter  with  Duggan 's 
report,  Gen.  Bingham  never  thought  of  the  matter  again, 
since,  with  so  many  more  important  matters  on  his  mind, 
he  would  not  have  automatically  recalled  the  Ellsworth 
case.  Mr.  Ely  informed  me  that  the  abstraction  of  papers 
from  the  files  at  police  headquarters  was  a  common  oc- 
currence during  his  connection  with  the  District  Attor- 
ney's office;  also  that  he  had  more  than  once  been  able 
to  prevent  police  ' 'frame-ups"  of  prisoners  in  trials 
where  he  was  prosecutor. 

THE  1908  IDENTIFICATION. 

Two  days  after  Schwitof sky's  arrest  in  Harlem  he  was 
"lined  up"  in  the  corridor  of  the  Tombs  prison  with  half 
a  dozen  other  prisoners,  and  Kinsler  and  Duggan  brought 
in  five  persons,  two  of  whom  were  householders  whose 
premises  had  recently  been  robbed,  to  ascertain  if  any  of 
them  had  ever  seen  him  before.  A  daughter  of  one  of 
these  householders,  a  young  woman,  had  seen  the  pre- 
sumed burglar  in  the  hallway  of  her  father's  house,  and 
thought  she  would  be  able  to  identify  him  if  she  saw  him 
again.  On  going  along  the  line  of  prisoners  this  young 
woman  picked  out  an  Italian  named  Jovine  as  the  man 
she  had  seen  in  the  hallway.  After  a  talk  with  Duggan, 
however,  she  declared  that  she  had  made  a  mistake  and 
that  Schwitofsky  was  the  man.  Deputy  Warden  Hanley 
had  seen  Duggan  indicate  Schwitofsky  to  her,  however, 
and  he  refused  to  let  the  identification  stand,  although 
the  lieutenant  begged  him  to  do  so.  These  facts  are  a 
matter  of  record  in  the  Tombs  identification  book.  A 
man  whom  Kinsler  and  Duggan  brought  to  the  Tombs 
on  the  same  occasion  and  who  identified  Schwitofsky  as 
having  been  loitering  about  the  apartment  from  which 
the  stickpins  and  the  hand  mirror  had  been  stolen  on 
the  day  of  the  burglary,  gave  a  false  address.  At  least 


122  TWENTY  YEARS  IN  STATE'S  PRISON 

when  I  looked  him  up  there  in  the  summer  of  1911,  the 
janitress  was  positive  that  no  such  person  had  lived  there 
during  her  term  of  office,  which  covered  ten  years.  This 
was  the  man  to  whom  Schwitofsky  says  he  saw  Kinsler 
point  him  out  through  a  crack  in  the  door  in  the  Center 
Street  police  court  the  day  of  the  line  up  in  the  Tombs. 

Schwitofsky  asserts  that  when  his  "pedigree"  was 
taken  at  the  One  Hundred  and  Twenty-sixth  Street  police 
station,  his  name  being  given  as  Gerber  and  his  address 
as  343  East  One  Hundred  and  Eighteenth  Street,  he  was 
only  partially  conscious  as  a  result  of  the  blow  from 
the  blackjack,  and  did  not  know  what  was  written  in  the 
blotter.  He  declares  that  he  never  lived  in  One  Hundred 
and  Eighteenth  Street,  but  at  the  time  of  his  arrest  he 
had  a  room  over  his  store  in  East  One  Hundred  and 
Seventeenth  Street.  Kinsler  assured  me  in  1911  that 
Schwitofsky  did  live  in  One  Hundred  and  Eighteenth 
Street,  because  he  (Kinsler)  visited  it  the  day  after  the 
arrest  and  found  some  of  the  prisoner's  clothing  there. 
No.  343  East  One  Hundred  and  Eighteenth  Street  is  an 
Italian  tenement  house,  the  janitor  of  which  not  only  does 
not  remember  Schwitofsky,  but  is  positive  that  no  Jew 
ever  lived  there — Schwitofsky  being  a  Jew. 

In  the  story  they  gave  out  to  the  newspaper  reporters 
on  the  day  of  Schwitof  sky's  arrest,  Kinsler  and  Duggan 
did  their  utmost  to  blacken  his  character.  According  to 
the  afternoon  newspapers  that  day,  the  prisoner  had  been 
recognized  by  Kinsler  as  just  out  of  Trenton  prison  for 
a  $60,000  jewel  robbery  in  Orange,  New  Jersey,  and  as 
having  served  two  terms  in  Sing  Sing  for  burglary.  Two 
memorandum  books  were  said  to  have  been  found  on 
him,  containing  the  addresses  of  more  than  200  promi- 
nent New  Yorkers,  opposite  each  address  being  a  note 
which  gave  the  time  of  going  to  bed  and  other  habits 
of  all  the  members  of  the  household.  "Nearly  a  hundred 
of  the  addresses  were  marked  off,  and  a  glance  showed 


TWENTY  YEARS  IN  STATE'S  PRISON  123 

them  to  be  houses  on  the  west  side  that  had  been  robbed 
recently,"  one  newspaper  said.  The  newspaper  head- 
lines were  sensational.  "Police  Capture  Alleged  Head 
of  Robber  Gang — Alfred  Gerber  Declared  to  be  Leader 
of  Thieves  in  Terror  Zone — Had  List  of  Houses,  Many  of 
Them  Among  Those  Eecently  Looted,"  was  one  of  them1. 
"Nabbed  Masked  Thief  at  Pistol  Point— Detectives  Get 
Man  Said  to  Have  Been  Terrorizing  Harlem — Is  $20,000 
Jewel  Robber,"  was  another;  "Had  List  of  Places  He 
Planned  to  Loot — Pistol  at  His  Head  Made  Armed  and 
Masked  Burglar  Surrender, ' '  was  a  third,  and  there  were 
others  of  like  tenor. 

One  newspaper — and  the  reporters  all  got  their  infor- 
mation from  Kinsler  and  Duggan — said  that  letters  were 
found  on  the  prisoner  that  led  the  police  to  believe  that 
much  loot  recently  stolen  from  west  side  homes  had  been 
hidden  in  Jersey  City,  and  that  he  had  a  big  bunch  of 
pawn  tickets  representing  stolen  property  in  his  posses- 
sion. 

The  Trenton  and  Sing  Sing  prison  sentences,  the  memo- 
randum books  with  the  names  of  householders,  the  letters 
and  the  pawn  tickets  were  all  pure  inventions — with  the 
exception  that  there  were  three  pawn  tickets  for  small 
amounts  loaned  on  the  prisoner's  own  property. 

I  have  already  shown  that  the  list  of  articles  alleged 
to  have  been  found  in  Schwitof sky's  possession  varies  on 
every  police  record,  altho  such  lists  are  supposed  to  b£ 
made  with  the  utmost  accuracy,  since  otherwise  there 
would  be  every  opportunity  for  the  loss  of  valuable 
property.  There  is  an  hour's  difference  in  the  recorded 
time  of  the  arrest  of  Schwitof  sky  in  official  reports  made 
by  Kinsler  and  Duggan.  In  a  report  made  to  Fourth* 
Deputy  Commissioner  Wood  on  November  27,  1908,  the 
hour  of  the  arrest  is  given  as  3  A.  M.  In  a  report  made 
by  Kinsler  to  Commissioner  Waldo  on  August  30,  1911, 
the  hour  of  arrest  is  given  as  "about  2  A.  M."  Now 


124  TWENTY  YEARS  IN  STATE'S  PRISON 

every  detective  and  policeman  carries  what  is  known  as 
an  "arrest  book,"  and  is  instructed  always  to  record 
every  detail  of  an  arrest,  and  particularly  the  time — for 
obvious  reasons. 

Why  should  the  time  of  Schwitof  sky's  arrest  have  been 
falsified  certainly  in  either  Kinsler 's  or  Duggan's  arrest 
book,  if  they  were  giving  the  prisoner  a  square  deal? 

Why  the  discrepancies  in  the  various  official  records  of 
the  list  of  articles  found  on  the  prisoner? 

Why  the  lies  about  the  memorandum  books,  the  letters 
and  the  pawn  tickets  ? 

Why  the  manufactured  stories  that  Schwitofsky  had 
served  terms  in  Trenton  and  Sing  Sing  prisons? 

Why  the  effort  to  have  Schwitofsky  falsely  identified  in 
the  Tombs? 

Why  the  neglect  to  apprehend  the  suspected  janitor 
(whose  photograph  was  in  the  rogues'  gallery)  of  the 
looted  apartment  house  ? 

THE  CUKEAN  INVESTIGATING  COMMITTEE. 

Kinsler  and  Duggan  were  called  before  the  Curran 
Investigating  Committee  last  November  to  answer  ques- 
tions about  the  robbery  of  Ullian 's  jewelry  store  in  Bos- 
ton, for  which  crime  Duggan  had  arrested  Jacob  Gold- 
berg, afterward  sending  a  lawyer  to  him  who  collected 
$500  and  told  his  client  that  he  would  have  to  share  the 
money  with  Duggan.  Ullian,  a  reputable  business  man, 
testified  before  the  committee  that  Duggan  had  offered 
for  a  consideration  to  recover  some  of  the  stolen  jewelry 
that  was  believed  to  have  been  pawned  in  New  York. 
Duggan  was  given  every  opportunity  to  deny  this  state- 
ment, but  as  he  refused  to  waive  immunity  he  was  not 
allowed  to  go  on  the  stand.  Kinsler  also  refused  to 
waive  immunity,  and  was  not  permitted  to  testify.  Ullian 
was  told  by  Duggan  that  he  was  a  business  man  as  well 


125 

as  a  policeman,  and  that  he  had  $90,000  in  bank.  Kinsler 
is  reputed  to  be  wealthy.  Mrs.  Ellsworth  told  me  that 
one  of  the  three  detectives  who  investigated  the  burglary 
of  her  flat,  either  Kinsler,  Duggan  or  Geary,  suggested 
to  her  that  money  might  secure  the  return  of  her  stolen 
property. 

Kinsler  and  Duggan  have  both  been  made  police  cap- 
tains since  Schwitofsky  went  to  prison.  While  in  the 
Detective  Bureau  they  did  a  great  deal  of  work  with 
' '  stool  pigeons. ' '  They  were  remembered  perfectly  well 
when  I  mentioned  their  names  to  Gen.  Bingham,  Mr. 
Slattery,  Mr.  Woods,  Mr.  Hanson,  and  Mr.  Ely,  but  not 
one  of  these  gentlemen  had  a  kind  word  to  say  about 
them.  Neither  has  Dan  E.  Kimball,  of  the  Prison  Asso- 
ciation, who  is  the  dean  of  the  benevolent  workers  in  the 
criminal  courts,  and  who  has  been  familiar  with  their 
police  work  ever  since  they  have  been  in  the  Detective 
Bureau. 

FBANK  MABSHALL  WHITE. 


126  TWENTY  YEAES  IN  STATE'S  PRISON 


people'0 


EVIDENCE  AT  THE  TRIAL. 

(Told  in  narrative  form.     Asterisks  mark  'exceptions' 

'by  counsel.) 

NETTIE  PALMA,  of  304  E.  llth  St.,  testified: 

That  on  19th  January  of  this  year  (1911)  she  was  liv- 
ing at  71  W.  45th  St.,  owned  by  Mr.  Dale  and  conducted 
as  a  dress-making  place.  It  was  a  private  house  and 
Mr.  Dale  occupied  three  rooms  on  the  second  floor  (that 
is,  you  go  up  a  few  steps  from  the  street  to  the  first  floor 
and  then  you  go  up  another  flight)  for  the  dress-making. 
There  were  two  others  employed  by  Mr.  Dale.  At  about 
8.30  in  the  morning  of  19th  January  (it  was  a  bright 
day)  she  saw  the  defendant  (whom  she  indicates).  There 
were  then  three  people  in  Mr.  Dale's  place  —  ANNA  HART, 
NORA  MURPHY  and  herself.  The  bell  rang,  witness  opened 
the  door,  defendant  said,  '  *  The  telephone  man.  '  '  Witness 
showed  him  where  the  telephone  was  and  went  upstairs. 
Mr.  Dale  occupied  the  whole  building,  using  the  second 
floor  for  the  dressmaking.  The  telephone  was  on  the 
parlor  floor,  in  the  middle  of  the  three  rooms  there.  Wit- 
ness took  the  defendant  into  the  second  room  where  the 
telephone  was,  going  through  the  hall  into  the  room,  and 
left  him  there,  she  going  upstairs  to  her  work. 

The  next  time  she  saw  defendant  was  about  ten  min- 
utes after  when  Mr.  Dale  called  to  them  and  she  went 
down.  Mr.  Dale  wouldn't  let  defendant  out.*  (Objec- 
tion to  last  statement  sustained.)  Mr.  Dale  called  the 


TWENTY  YEAKS  IK"  STATE'S  PEISON  127 

maid,  Anna  Hart,  and  told  her  to  stand  by  the  door  and 
not  let  defendant  out.  And  when  he  saw  that  Mr.  Dale 
wouldn't  let  him  out  he  took  out  a  revolver  and  said  to 
Mr.  Dale,  "Are  you  going  to  let  me  out!"  And  he  said, 
"No."  He  said,  "I'll  shoot  you  if  you  don't."  And 
then  he  turned  to  Anna  Hart,  and  said  to  her,  "Are  you 
going  to  let  me  out,"  and  she  said,  "No,"  and  then  he 
said,  "I'll  shoot  you"  to  her.  And  then  she  opened  the 
door  and  let  him  out.  And  Anna  Hart  and  Mr.  Dale  ran 
after  him,  but  couldn't  catch  him. 

She  saw  them  running  after  him  towards  Fifth  Avenue, 
and  then  run  back  to  Sixth  Ave.  She  saw  him  doing  that. 
He  ran  about  five  houses  towards  Fifth  Ave.  on  the 
opposite  side  of  the  street.  Mr.  Dale  and  the  girl  were 
about  four  feet  behind  him.  Mr.  Dale  ivas  hollering 
and  nobody  would  catch  him,  so  he  turned  to  cross  and  he 
dropped  his  revolver  and  he  ran  towards  Sixth  Ave.  and 
jumped  on  a  car.  And  there  was  another  fellow  with 
him. 

The  next  time  she  saw  the  defendant  was  in  57th  St.  in 
the  Court. 

Cross-Examination. 

Defendant  dropped  the  revolver.  Mr.  Dale  did  not 
pick  it  up.  The  detective  picked  it  up.  The  detective  has 
it.  She  saw  defendant  drop  the  revolver.  (Witness  re- 
peated her  testimony  before  given  as  to  opening  the 
door  at  8:30  A.  M.  to  defendant.)  She  didn't  probably 
talk  to  him  more  than  a  second  or  two  and  then  he  went 
with  her  to  the  telephone  booth.  It  wasn't  a  dark  entry 
— not  dark  there  at  all.  It's  very  light. 

A  cross-examination  ensued  as  to  the  darkness  of  the 
hall  (witness  insisting  on  its  being  light)  and  also  as  to 
her  having  testified  before  the  magistrate  that  the  offense 
occurred  on  the  20th  of  January — and  not  on  the  19th. 

Defendant  did  not  point  the   revolver  at  her.     He 


128  TWENTY  YEARS  IN  STATE'S  PRISON 

pointed  it  at  Dale  who  didn't  bother  about  the  revolver 
being  pointed  at  him  and  didn't  let  defendant  out.  It 
was  only  when  he  pointed  the  revolver  at  Anna  Hart 
that  she  let  him  out. 

In  the  course  of  cross-examination  as  to  how  she  identi- 
fied defendant  the  Court  asked : 

"Have  you  any  doubt  in  your  own  mind  at  all  that 
this  is  the  man  " 

Witness  answered:  "Yes,  sir,  that's  the  man." 

"Have  you  any  doubt  about  it?" 

"No." 

"You  have  no  uncertainty  about  it?" 

"I  am  sure  that's  the  man." 

In  answer  to  counsel  for  The  People,  witness  testified 
that  she  identified  the  defendant  now,  and  did  not  do  so 
because  Mr.  Dale  says  it  is  the  man. 

Re-Cross-Examination. 

Witness  has  been  talking  with  Mr.  Dale  and  the  po- 
licemen and  has  been  coming  to  this  court  and  the  police 
court  and  has  been  talking  frequently  about  defendant. 
"But  you  must  remember,"  she  said,  "that  this  man 
was  caught  two  weeks  after!  No,  it  was  not  hard  to 
identify  a  man  caught  two  weeks  afterwards." 


THEODOKE  B.  DALE,  of  71  W.  45th  St.,  testified :  That 
he  is  a  dressmaker  whose  place  of  business  is  at  71  W. 
45th  St.  He  was  in  that  business  in  that  place  on  19th 
January,  1911.  He  occupies  the  entire  house.  At  about 
8.30  or  8.40  on  19th  January  he  saw  defendant  there. 
Defendant  was  not  employed  by  him.  He  had  not  seen 
him  before.  ("One  moment-,  Mr.  McCormick,  I  did  see 
him  before,  outside  of  the  house,  on  the  day  previous, 
but  not  in  the  house,  in  company  of  another  man.  He 


TWENTY  YEARS  IN  STATE'S  PRISON  129 

-icas  speaking  to  a  man  who  had  been  at  the  house  to 
apply  for  alms."}  On  the  19tli  witness  first  saw  de- 
fendant in  the  hall  leading  to  the  telephone  closet.  Wit- 
ness had  been  in  the  dining-room — an  extension  back  of 
the  telephone  closet — and  came  out  to  go  to  the  hall  to 
get  his  coat.  He  saw  the  door  of  the  closet  which  con- 
tains the  'phone  open,  and  the  man  on  the  sill  of  the 
hall-door  leading  to  this  room  that  had  the  'phone  there, 
with  a  piece  of  wire  in  his  hand.  He  did  not  see  defend- 
ant in  the  booth,  but  when  defendant  saw  witness  defend- 
ant went  into  the  booth.  He  had  a  piece  of  wire  in  his 
hand  and  a  pair  of  pliers.  The  cook  came  up  and  asked 
what  the  man  was  doing  there  and  witness  said  he  pre- 
sumed he  was  there  to  fix  the  telephone.  Witness  walked 
out  to  get  his  overcoat,  put  it  on  and  walked  to  the  stoop. 
In  the  meantime  he  had  seen  the  man's  bag  upon  the 
piano  and  did  not  like  the  looks  of  it  on  his  piano-cover 
and  removed  it  and  put  it  on  the  piano  stool  and  answered 
the  cook's  question  and  walked  out  and  put  on  his  coat 
and  saw  the  man  that  had  been  there  on  the  previous, 
day  asking  for  alms,  recognized  him,  connected  the  two 
men  at  onee  and  went  back,  rang  the  bell  for  NETTIE 
PALMA  and  asked  her  what  the  man  was  doing  there.  He 
did  so  in  defendant's  hearing.  He  asked  her  because  she 
answers  the  front  door  bell.  Had  let  himself  in  with 
his  own  key.  She  said  defendant  was  the  telephone  man. 
In  presence  of  his  two  girls  and  the  cook  asked  defend- 
ant what  he  was  doing  there.  With  a  decidedly  foreign 
accent  he  said  he  was  from  the  N.  Y.  Telephone  Co. 
Witness  asked  for  his  badge  and  defendant  said,  "Here's 
my  book  of  instructions,"  and  witness  said,  "That  won't 
do.  I  want  to  see  a  badge. ' '  There  was  no  badge  forth- 
coming. He  said  he  had  forgotten  it.  Witness  asked 
NOEA  MURPHY  to  telephone  to  the  general  manager's 
office  and  ask  him  if  anybody  had  been  instructed  to  fix 
the  telephone,  and  the  answer  came  "No,"  over  the  wire. 


130  TWENTY  YEARS  IN  STATE'S  PRISON 

Witness  asked  the  cook  to  guard  the  door  while  he  went 
for  a  policeman.  Before  he  could  get  out  and  put  his 
coat  on  again  the  man  came  to  the  door  and  said  the 
telephone  didn't  need  fixing  anyway  and  he  started  to 
leave  and  the  cook  told  him  that  he  couldn't  go;  that  she 
had  been  instructed  not  to  let  him  out.  This  was  in 
witness'  presence.  The  colored  woman  was  Anna  Hart 
and  she  said  defendant  couldn't  leave,  and  he  said,  "You 
won't  let  me  out,  you  won't,"  and  he  drew  a  revolver, 
and  said,  "I'll  shoot  you  if  you  don't  let  me  out."  Then 
she  threw  up  both  hands,  and  he  opened  the  door.  Before 
he  opened  it  he  held  the  door  and  witness  stood  in  the 
corner  of  the  door.  Defendant  held  the  door  with  one 
hand  and  levelled  it  at  witness  and  said,  "You  won't  let 
me  out;  you  won't?  "Well,  I'll  shoot  you." 

Then  defendant  threw  the  door  open  and  ran  out  with 
the  book  in  his  hand.  Witness,  hatless,  followed  him,  and 
he  evaded  a  chauffeur  in  the  street  who  tried  to  stop  him 
and  ran  on  the  south  side  of  the  street  and,  in  front  of 
the  Hotel  Webster  two  chauffeurs  caught  defendant.  Wit- 
ness told  them  defendant  had  a  revolver  and  they  dis- 
armed him.  The  pistol  remained  in  the  possession  of 
one  FRANK  HAROLD,  the  starter.  (Witness  couldn't  say 
whether  Harold  was  in  court ;  believed  he  had  been  sub- 
poenaed.) Witness  asked  the  chauffeur  to  hold  defendant 
while  he  got  an  officer  and  defendant  said,  "Hold  that 
man,  hold  that  man,  he  was  trying  to  kill  me."  Some 
citizen  laid  his  hand  on  witness'  shoulder,  saying,  "You 
had  better  remain  here,  too."  Witness  said,  "I  am  per- 
fectly willing."  Then  defendant  said,  "Hold  him,  hold 

him,  he's  a .  He  was  trying  to  take  me  to  his 

room  to me. ' '  And  then  they  said  to  defendant, 

"You  had  better  run  along,  kid.  We  can't  get  a  police- 
man. ' ' 

Witness  followed  defendant  to  Sixth  Avenue  where 
he  went  on  a  north  bound  car.  One  of  witness'  neigh- 


131 

bors,  in  fact,  tried  to  stop  defendant.  Defendant  was 
then  joined  by  the  other  man — the  one  who  had  been  out- 
side at  the  front  door — and  went  on  northward  on  the 
car.  Witness  saw  both  of  the  men  later  when  they  were 
under  arrest  in  the  police  court.  One  had  since  been  con- 
victed, not  in  this  same  case,  but  in  a  case  of  blackmail.* 
That  is  all  witness  knew  about  this  case. 
By  the  Court: 

"Did  you  see  the  revolver?" 

"Yes,  sir." 

"How  near  were  you  to  him  at  the  time?" 

' '  The  width  of  the  door,  about  three  feet. ' ' 

"Do  you  know  whether  or  not  it  was  loaded  at  the 
time?" 

"I  saw  cartridges  in  it." 

"When?" 

"At  the  time  he  pointed  it  at  me." 


Cross-Examination. 

One  chauffeur  held  defendant  and  the  other  took  the 
pistol  from  him.  He  did  not  throw  it  away.  It  was 
taken  from  him.  Witness  was  positively  sure  of  that. 

On  the  night  of  January  31st  about  midnight  or  there- 
abouts two  officers  brought  defendant  to  him.  One  re- 
mained outside.  Witness  did  not  say  to  the  officers: 
1 '  I  want  to  see  the  top  of  this  man 's  wrist. ' '  Said  noth- 
ing at  any  time  about  defendant's  wrist  and  did  not 
examine  it.  It  was  unnecessary.  Defendant  was  dressed 
in  the  same  manner  as  on  the  19th.  He  had,  however, 
begun  raising  a  small  mustache.  Witness  got  out  of 
bed  and  admitted  the  officers.  The  gas  was  lit  in  the 
parlor  and  the  officer  brought  defendant  in.  Witness 
immediately  saw  it  was  the  man.  Witness  had  not  no- 
ticed any  marks.  Defendant's  accent — his  language — 


132  TWENTY  YEARS  IN  STATE'S  PRISON 

was  enough.  Defendant  had  the  sort  of  face  one  couldn  't 
forget.  Witness  asked  him  to  remove  his  hat. 

(Cross-examined  closely  like  previous  witness  as  to  his 
having  stated  in  the  magistrate's  court  that  the  offense 
occurred  on  20th  Jan.,  and  not  on  19th,  witness  could  not 
be  positive  as  to  which  date  he  stated  there  but  was  now 
sure  that  the  date  was  the  19th.) 

The  revolver  was  taken  out  of  the  man's  pocket  by 
one  chauffeur  while  the  other  held  him.  Witness  had 
already  said  why  they  didn't  hold  (i.  e.,  detain)  him. 
There  wasn't  an  officer  in  sight.  Witness  had  told  them 
of  the  crime.  The  chauffeurs  could  be  sent  for.  They 
were  honest,  decent-looking  citizens  and,  though  being 
told  of  the  crime,  they  had  let  defendant  go.  Witness 
protested.  He  asked  others  to  hold  defendant,  and  tried 
to  hold  him  himself.  Defendant  struggled  and  got  away. 
The  chauffeurs  let  him  go  and  they  didn't  hold  (detain) 
witness.  

ANNA  HABT,  of  227  W.  62nd  St.,  testified: 

That  on  19th  January  she  was  working  for  Mr.  Dale, 
doing  general  housework.  About  half-past  eight  in  the 
morning  saw  the  defendant,  the  man  right  there  (in- 
dicating defendant)  at  the  telephone  closet  in  the  middle 
parlor  when  she  went  from  serving  breakfast.  He  had 
the  revolver  in  his  hand  when  he  came  to  the  front  door. 
He  pulled  it  out  of  his  pocket  and  drew  it  in  her  face 
twice  and  said  with  a  very  loud  voice — it  seemed  he  was 
very  angry — that  he  would  shoot  her  if  she  didn't  move 
away  from  the  door.  As  she  moved  away  from  the  door 
he  ran  out  of  the  door. 

Cross-Examination. 

It  was  more  than  two  minutes  she  saw  him  in  the 
front  hall  at  the  front  door.  He  was  standing  in  the  mid- 


TWENTY  YEARS  IN  STATE'S  PRISON  133 

die  parlor  at  the  telephone  closet  in  the  back  of  the  hall, 
like,  as  you  come  into  the  house.  No,  it  wasn't  very  dark 
there  and  witness  looked  right  into  his  face  because  she 
asked  who  was  he.  He  was  about  three  foot  away  from 
her.  He  didn't  say  anything  else  at  the  door  because 
she  didn't  give  him  a  chance  when  he  had  pointed  the 
revolver  in  her  face,  twice.  She  was  not  the  only  one  he 
pointed  it  at.  He  pointed  it  at  Mr.  Dale,  too.  That  was 
after  he  pointed  it  at  her.  Then  he  ran  out  of  the  door 
and  down  the  street.  Mr.  Dale  followed  him  and  she  fol- 
lowed after  Mr.  Dale  as  he  was  calling  for  the  police. 
She  didn't  see  the  chauffeurs  right  then.  She  saw  them 
in  the  big  crowd  standing  round  this  fellow.  She  wasn't 
close  to  him  then  but  he  was  in  the  midst  of  that  crowd. 
She  wasn't  right  up  with  the  crowd,  but  he  was  in  the 
midst  of  that  crowd,  arguing.  When  she  saw  the  man 
that  was  in  the  house  she  noticed  no  particular  marks  on 
him  only  that  he  didn't  have  the  moustache  which  he's 
got  on  now.  "I  knows  him  anyhow;  I  knows  that's  the 
man  that  pointed  the  gun  in  my  face.  I  knows  that!" 
she  said. 


NOEA  MURPHY,  of  262  W.  123rd  St.,  testified: 

That  she  was  employed  by  Mr.  Dale's  dressmaking 
establishment  on  the  19th  of  January  and  saw  that  man 
right  here  (indicating  defendant).  He  was  in  the  tele- 
phone booth  when  she  was  called  down  stairs,  but  she  did 
not  know  what  he  was  doing.  He  was  standing  just 
there.  Mr.  Dale  had  called  her  down  and  asked  her  to 
telephone  to  the  Telephone  Co.  and  see  if  they  had  sent 
a  man  to  fix  the  'phone.  That  was  in  the  presence  of  the 
defendant.  She  stepped  in  and  'phoned  to  the  Telephone 
Co.  and  asked  if  they  had  sent  a  man,  and  they  said  no, 
they  hadn't.*  After  she  left  the  telephone  booth  she 
didn't  see  anything  more.  Everybody  had  left  the  house, 


134  TWENTY  YEAES  IN  STATE'S  PEISON 

except  Nettie  Palma,  and  she  was  standing  in  the  hall.' 
That  was  all  she  knew  about  it.  But  he  (defendant) 
had  'phoned  the  day  before  and  asked  if  this  was  Mr. 
Dale's  house  and  said  they  were  going  to  put  a  telephone 
in  the  house  next  door  and  they  would  have  to  cut  off 
Mr.  Dale's  service  for  an  hour  in  the  morning  and  she 
told  that  to  Mr.  Dale  who  said,  "All  right,  but  not  to 
cut  off  too  long  because  it  was  his  busy  time."  That 
was  all  she  knew  about  it.  She  believed  it  was  the  de- 
fendant because  he  spoke  in  broken  English. 

('Counsel  for  defendant  had  persistently  objected  to 
all  this  and  moved  that  it  be  struck  out.) 
By  the  Court: 

"And  in  addition  to  the  broken  English  you  say  that 
you  recognized  the  sound  of  his  voice?" 

"Yes,  sir." 

Motion  denied. 
(Counsel)  "Exception." 

She  recognized  him  now  as  the  man  who  was  there  that 
day  on  the  19th.  There  was  no  doubt  at  all  in  her  mind. 

(An  attempt  by  counsel  for  The  People  to  examine 
further  as  to  the  voice  she  had  heard  over  the  telephone, 
met  with  vigorous  objection  by  counsel  for  defendant. 
The  Court:  "Yes,  you  may  have  an  exception.  However, 
you  may  strike  out  the  testimony  as  to  the  conversation 
on  the  telephone  and  the  jury  are  instructed  to  disregard 
it."  Counsel  for  defendant  then  moved  that  a  mistrial 
be  declared,  contending  that  the  testimony  could  not  be 
stricken  from  the  memory  of  the  jury.  Denied,  appar- 
ently, as  the  trial  proceeded.) 


WILLIAM  W.  DUGAN,  of  the  164th  Precinct,  testified: 

That,  on  llth  July,  1910,  he  was  present  in  Court  be- 
fore Judge  Swann  when  the  defendant  was  arraigned 


TWENTY  YEARS  IN  STATE'S  PRISON  135 

and  remanded  to  the  Tombs  for  possibly  two  weeks. 
About  the  10th  or  12th  of  August  sentence  was  suspended 
on  him.  He  was  present  and  heard  the  Judge  suspend 
sentence.  There  had  been  no  trial  for  defendant  had 
pleaded  guilty  to  burglary  in  the  third  degree. 

(There  was  strenuous  opposition  by  Counsel  for  de- 
fendant who,  at  one  time  when  Counsel  for  the  People 
asked  witness,  "Well  officer,  why  did  you  arrest  this 
man?"  and  received  for  reply:  "I  arrested  this  man 
because  I  knew  him  to  be  a  professional  burglar,"  moved 
that  a  juror  be  withdrawn  and  a  mistrial  declared.  The 
Court  struck  out  the  answer  and  instructed  the  jury  to 
disregard  it,  but  denied  the  motion.) 

EDWIN  DENAHM,  of  66  Fenimore  St.,  Brooklyn,  testified : 

That  he  was  a  clerk  in  the  N.  Y.  Telephone  Co.,  who  had 
charge  of  the  employees'  records  and  pay-rolls.  His 
territory  covered  all  New  York  County,  Long  Island, 
and  part  of  New  Jersey  and  it  covered  every  employee 
in  N.  Y.  County.  The  name  Alfred  Schwitofsky  did  not 
appear  on  the  roll.  He  had  gone  back  as  far  as  1880. 

WILLIAM  BROWN,  of  the  Detective  Bureau,  testified : 

That  he  arrested  defendant  in  the  Mills  Hotel  No.  2, 
in  Eivington  St.,  on  1st  Feb.  Before  that  he  had  visited 
the  premises  71  W.  45th  St.  and  had  seen  Mr.  Dale. 
That  was  on  the  19th.  He  received  some  information 
from  Mr.  Dale  in  reference  to  a  man  named  GELSKY.  In 
consequence  of  that  information  he  went  to  the  Mills 
Hotel  No.  3  and  made  inquiry  there.  Afterwards  he 
sent  for  defendant  and  asked  him  if  he  had  witnessed  an 
accident  at  the  corner  of  17th  St.  and  Union  Square. 
He  said  yes.  Witness  then  asked  him  if  he  had  saw  a 
man  named  Mr.  Schultz  in  reference  to  the  accident  and 
he  said  yes.  Witness  then  told  defendant  that  he  was 
going  to  arrest  him  on  suspicion  of  having  burglarized 


136  TWENTY  YEARS  IN  STATE'S  PEISON 

the  house  of  Mr.  Dale  on  the  19th  of  January.  He  said, 
"That's  a  mistake.  I'll  accompany  you  to  the  com- 
plainant and  if  the  complainant  identifies  me,  all  right. 
I'll  sue  him."  Witness  said,  "Are  you  willing  to  go  with 
me  to  the  complainant?"  And  defendant  said,  "Yes," 
he  says,  "I  just  went  to  work  to-day."  Witness  then 
took  him  to  the  house  of  Mr.  Dale  and  sent  one  of  the  men 
up  and  he  rang  the  bell.  Mr.  Dale  came  to  the  front 
stoop  and  witness  asked  him  to  look  at  the  man  to  see 
whether  he  was  the  man  who  had  been  in  his  house  on  the 
19th  of  January.  Mr.  Dale  asked  him  to  bring  defendant 
into  the  parlor  so  that  he  could  get  a  good  look  at  him. 
Witness  brought  him  up  the  front  stoop  into  the  hall- 
way and  brought  him  into  the  parlor.  Mr.  Dale  turned 
on  the  light  and  he  positively  identified  the  man  then. 
He  said  in  the  presence  of  the  defendant  "That's  the 
man."  The  next  morning  in  the  Police  Court,  before 
Magistrate  0  'Connor,  he  was  placed  on  one  of  the  benches 
and  the  three  female  witnesses,  who  preceded  witness 
here,  positively  identified  him.  Well,  he  was  sat  in  the 
audience  and  the  witnesses  went  over  there  and  placed 
their  hand  on  his  shoulder,  and  they  said:  "That's  the 
man. ' ' 

Cross-Examination. 

Defendant  was  placed  in  the  audience  where  the  public 
sit,  about  fifteen  feet  from  the  railing  of  the  Magistrate 's 
Court.  He  was  brought  from  the  prison  and  placed  in 
the  audience.  The  witnesses  who  afterwards  identified 
him  were  at  that  time  in  the  inner  room,  the  complaint 
room.  He  had  to  pass  the  door  of  that  room — about  fifty 
feet  away,  hid  by  a  wall  and  another  door.  They  couldn't 
see  over  there,  you  can't  see  anybody  in  the  audience 
when  the  door  in  that  partition  is  closed.  Each  of  the 
witnesses  went  up  the  aisle  in  the  audience,  and  looked 
over  the  audience,  and  picked  him  out. 


TWENTY  YEARS  IN  STATE'S  PRISON  137 

The  People  Rest. 

WILLIAM  BROWN,  recalled  by  Counsel  for  defense,  testi- 
fied: 

That  he  arrested  defendant  on  the  charge  of  burglary 
— not  unlawful  entry.  Did  not  tell  him  it  was  unlawful 
entry.  The  complaint  was  drawn  up  as  unlawful  entry, 
but  witness  is  not  responsible  for  the  mistake  of  the 
Court.  He  had  it  changed  to  burglary  in  the  second 
degree. 

(Further  cross-examination  as  to  the  manner  of  Dale's 
identification  of  Schwitofsky  at  the  time  of  the  arrest 
concluded  thus : 

"Do  you  recollect  about  him  examining  his  wrist?" 

"Yes." 

"Now  tell  what  Mr.  Dale  did  about  his  examining  his 
wrist." 

"Mr.  Dale  never  examined  his  wrist." 

"Well,  who  did?" 

"Mr.  Harold,  the  chauffeur.  He  was  the  second  man 
that  identified  him." 

"Well,  what  did  he  say  about  his  wrist?" 

"Why,  I  brought  him  up  the  street " 

The  Court:  "Now,  this  is  not  proper  cross-examina- 
tion." 

Counsel:  "No,  sir.  I  appreciate  that,  your  Honor. 
That  is  all.") 

The  People  Rest. 

THE  DEFENSE. 

ALFRED  SCHWITOFSKY,  the  defendant,  testified: 

My  name  is  Alfred  Schwitofsky.  I  was  born  in  Allen- 
town,  Pa.,  on  4th  of  July,  1879.  I  have  lived  here  in 
N.  Y.  since  I  came  here  in  the  latter  part  of  1900.  I 
have  lived  here  since  10th  of  August  last.  I  have  been 


138  TWENTY  YEABS  IX  STATE'S  PBISOX 

away  since  1903,  from  N.  Y.  I  have  been  way  for  3 
years  and  eight  months.  I  live  now  at  the  Mills  Hotel 
No.  2.  I  have  heard  Mr.  Dale,  the  complaining  witness 
in  this  case,  testify  that  on  the  19th  of  January  this 
year,  I  entered  his  house  at  71  W.  45th  St. ;  that  I  went  to 
the  telephone  booth;  and  afterwards  threatened  to  shoot 
him  if  he  wouldn't  let  me  out;  and  threatened  to  shoot 
a  young  girl  in  there  if  she  wouldn't  let  me  out;  that  I 
ran  away  down  the  street  and  had  a  revolver  and  event- 
ually escaped — that  is  not  so.  I  was  never  in  Mr.  Dale's 
house  before  my  arrest.  I  never  knew  Mr.  Dale  before 
my  arrest.  I  did  not  know  where  his  house  was  before 
my  arrest.  I  was  not  in  his  house  at  all  on  January  19th, 
1911,  or  on  any  other  day.  I  did  not  fix  a  telephone  for 
anybody,  anywhere,  on  that  day.  I  never  was  an  em- 
ployee of  that  company.  The  first  I  knew  about  this 
was  on  the  night  from  the  first  to  the  second  of  Feb- 
ruary when  I  was  in  the  Mills  Hotel,  out  of  bed  and 
taken  downstairs  by  an  officer  by  the  name  of  Dungate — 
I  believe  that  is  his  name — not  the  officer  who  was  on 
the  stand  just  now.  I  was  taken  downstairs  and  into  an 
office  like  in  the  hotel,  where  the  officer  which  was  on  the 
stand,  Mr.  Brown,  was  sitting  in  a  chair,  and  he  asked 
me  questions  as  to  being  a  witness  in  17th  St.,  which  I 
told  him  I  was. 

Then  he  asked  me  to  come  along,  and  I  says,  "What 
do  you  mean?  I  have  to  go  to  work  at  six  o'clock;  what 
do  you  want  to  do  with  me?"  and  he  says,  "Well,  come 
along. ' ' 

So  he  says,  "Wasn't  you  in  a  party  named  Dale's 
house?  Come  on,  we  have  got  a  couple  of  chauffeurs* 
We  have  telephoned  to  two  chauffeurs  ahead  of  time,  and 
the  chauffeurs  come  down  here."  And  he  said,  "Come 
along,"  and  I  said,  "Well,  I'll  come,  because  if  I  don't 
go  with  you,  you  '11  take  me  anyway. ' ' 

And  we  took  the  subway  station  at  Spring  or  Bleecker 


TWENTY  YEARS  IX  STATE'S  PRISON  139 

St.,  I  don 't  remember  which,  and  got  off  at  Times  Square, 
and  turned  round  the  corner  at  45th  St.  And  they  took 
me  to  a  booth  like  and  there  was  two  chauffeurs  there 
outside  of  the  booth.  And  Brown  said,  "  There  is  the 
man  I  was  telephoning  to  you  about."  They  looked  me 
over,  made  me  take  off  my  hat.  One  chauffeur  says, 
"Show  me  your  left  wrist,"  which  I  did  show  it  to  him. 

And  he  looked  at  the  officer,  and  he  said,  "Well,  I 
guess  that's  the  man."  And  the  other  fellow  looked 
closer  yet,  and  he  said,  "I  ain't  sure,  I  ain't  quite  sure." 

And  from  there  they  took  me  across  the  street.  Of- 
ficer Brown  held  me  downstairs  while  the  other  officer, 
Dungate,  went  upstairs,  and  about  five  or  six  minutes 
after,  he  came  out  of  the  door  and  he  hollered,  "All 
right."  And  so  Brown  says,  "Come  on  upstairs,"  and 
I  says,  "What  does  that  all  mean?  Come  upstairs? 
What  do  you  take  me  into  a  house  for?"  He  said, 
' '  Never  mind,  come  on  up, ' '  and  he  grabbed  me  and  took 
me  upstairs,  and  there  I  was  confronted  with  a  small 
man,  who  I  later  found  out  was  Dale. 

He  looked  me  over  and  also  wanted  me  to  show  him 
my  left  wrist,  and  I  showed  it  to  him.  And  he  looks  at 
the  officers  and  Brown  nodded,  and  he  says,  "That's  the 
man" — afterwards,  after  Brown  nodded  to  him. 

And  from  there  I  was  taken  to  Police  Headquarters, 
and  first  charged  with  unlawful  entry,  and  the  clerk  at 
the  desk,  the  lieutenant  at  the  desk,  said,  "You  have  to 
take  him  to  the  Night  Court,"  and  he  said,  "No,  put  him 
down  as  a  suspicious  person."  I  don't  know  which  I  was 
blottered  through  the  two  of  them.  And  the  next  morn- 
ing I  was  lined  up  before  all  the  Central  Office  men  and 
from  there  taken  to  57th  St.  Court  before  Magistrate 
0  'Connor. 

I  was  taken  to  57th  St.  Court  and  placed  in  the  pen. 
In  a  short  while,  a  young  fellow  came  down  stairs,  and 
was  brought  down  by  the  same  two  officers,  and  one  of 


140  TWENTY  YEAES  IN  STATE'S  PEISON 

them  shoved  at  him  at  the  side  with  his  hand  like  that, 
and  he  said,  "Go  ahead.  Say  it"  to  the  other  fellow, 
and  the  other  fellow  started  in  to  cry,  and  said,  "Yes." 

And  from  there  I  was  taken  upstairs  into  the  back 
room  and  charged  before  the  clerk,  the  clerk  of  the  court, 
in  the  back  room,  on  a  charge  of  unlawful  entry.  Those 
three  women — two  white  women  and  a  colored  woman — 
were  sitting  right  there  and  the  clerk  in  the  back  room 
asked  me  if  I  pleaded  guilty  or  not  guilty,  and  I  pleaded 
not  guilty.  And  I  had  to  sign  my  name  there,  and  I  was 
taken  into  the  corridor  to  wait  to  be  arraigned  before 
Magistrate  O'Connor. 

I  was  then  arraigned  before  Magistrate  0  'Connor  and 
an  attorney  was  to  be  appointed  for  me  by  a  friend  to 
appear  for  me  in  the  Magistrate's  Court,  but  he  wasn't 
there.  So,  therefore,  I  asked  for  24  hours'  stay  for  the 
attorney  to  be  there.  I  heard  the  officer  testify  that  I 
was  placed  in  the  audience.  That's  a  lie.  I  heard  him 
testify  that  I  was  placed  out  in  the  audience  and  the  three 
women  were  called  in  and  went  up  near  me  in  the  audi- 
ence and  pointed  me  out.  That  isn't  so.  Nothing  like 
that  happened.  I  was  never  placed  in  the  audience,  was 
never  pointed  out,  never  saw  a  hand  put  on  me  by  any 
of  the  women. 

Cross-Examination. 

I  am  an  electrician.  I  studied  electricity  over  in  the 
old  country  in  Vienna.  I  have  held  jobs  as  an  electrician. 
My  last  job  was  for  the  Interborough  Eailway  Co.  I 
worked  for  about  4  days  until  I  was  arrested — 3  days  in, 
98th  St.,  and  one  day  in  129th  St.  Before  that  I  worked 
for  myself.  I  had  a  shop  in  19  and  21  Second  Ave.  I 
had  that  shop  for  about  2  months  from  the  beginning 
of  October  till  the  latter  part  of  September — November. 
It  was  a  basement.  Occasionally  I  employed  men.  One 
time  I  had  two  men  employed  at  general  electrical  work. 


TWENTY  YEARS  IN  STATE'S  PRISON  141 

(Under  questioning  defendant  gave  particulars  of  the 
jobs  he  undertook  in  this  shop.) 

Before  that  I  worked  for  Mr.  Ike  Silverman  of  the 
Fidelity  Secret  Service,  at  123  Liberty  St.  I  worked 
for  him  in  the  latter  part  of  August  and  all  of  September. 
My  work  was  inside  work  in  the  office — writing  and  re- 
porting matters  that  come  in — reports  that  were  brought 
in  by  the  men.  No,  not  detectives,  by  the  men  that  acted 
as  guards  in  the  cloak  and  suit  strike. 

Before  that  I  worked  for  a  general  contract — Mr. 
Louis  Berlion.  Before  June,  1910,  I  was  in  Matteawan 
State  Hospital. 

I  was  not  really  convicted  in  1910  of  a  burglary  com- 
mitted in  1908.  I  pleaded  guilty  under  the  circumstances 
of  being  away  two  years  and  a  half  in  Matteawan  State 
Hospital.  I  wasn't  tried  in  1908.  I  was  charged  at  the 
same  time  with  carrying  burglars'  instruments.  If  you 
take  it  that  way  I  was  carrying  that  the  day  after  I  got 
out  even  from  Matteawan.  I  don't  think  I  had  burglars' 
instruments  with  me.  Yes,  I  did  plead.  I  plead  guilty 
under  the  circumstances.  I  pleaded  guilty  in  the  Court 
of  Special  Sessions  in  March,  1908,  to  a  charge  oj  carry- 
ing concealed  weapons.  I  was  guilty  of  that.  It  was  a 
revolver.  I  was  two  weeks  on  Blackwell's  Island  and 
then  was  transferred  to  Matteawan,  where  I  remained 
2  years  and  4  months.  I  came  back  to  the  Tombs  where 
I  was  from  the  6th  of  June  to  the  middle  of  August.  I 
got  a  job  the  day  after  I  came  out.  I  was  arrested  on 
the  night  between  the  1st  and  2nd  of  February.  So  that 
I  was  out  of  jail  from  August  until  February.  I  served 
a  term  for  grand  larceny  in  Pennsylvania,  for  stealing 
something  like  $25,000.  That  was  at  Morristown.  I 
pleaded  guilty,  was  sentenced  to  5  years — three  years 
and  $1,000  fine.  That  was  on  the  8th  December,  1903. 
Yes,  I  have  been  in  jail  most  of  the  time  for  the  last  ten 
years. 


142  TWENTY  YEARS  IN  STATE'S  PKISON 

As  far  as  I  can  recollect  I  was  at  123  Liberty  St.  on 
the  morning  of  the  19th  of  January. 

I  was  once  fined  $5  in  Hoboken,  N.  J.,  on  May  14th, 
1903,  on  a  charge  of  grand  larceny  before  Judge  Blair. 
I  went  to  trial  and  was  fined  $5. 

I  have  not  committed  any  crime  since  I  got  out  of 
jail.  I  have  not  committed  a  burglary  since.  I  have 
never  carried  a  gun  since  I  was  out.  All  these  three  or 
four  or  five  people  who  say  they  saw  me  with  a  gun  and 
saw  me  point  it  must  be  mistaken. 

At  8.30  in  the  morning  of  the  19th  I  was  downstairs 
at  123  Liberty  St.  waiting  for  Mr.  Silverman  and  then  I 
went  to  the  Lion  Brewery  where  I  was  a  witness. 

Re-direct  Examination. 

(Counsel  and  defendant  both  pleaded  for  permission 
to  enter  into  a  detailed  statement  of  former  crimes  so 
that,  in  the  words  of  defendant,  "I  have  a  chance  to 
show  that  perhaps  I  was  not  guilty,  because  I  plead 
guilty,  but  I  wasn't  given  justice  by  that  Court."  Ob- 
jected to  and,  after  argument,  objection  sustained.) 

I  was  in  Matteawan — an  insane  Asylum — for  2  years 
and  4  months.  I  got  out  of  there  on  June  6th,  1910. 

I  should  like  to  show  his  Honor  and  the  jury  that  I 
am  really  framed  up  on  this  charge — I  would  like  to  show 
this  to  the  jury.  No,  sir,  I  have  not  been  framed  up  on 
all  my  sentences.  I  admitted  them.  I  plead  guilty.  I 
was  not  in  the  employ  of  the  Telephone  Co.  on  the  date 
named  in  this  indictment.  I  don't  think  I  was  carrying 
electrician 's  tools  and  wires  on  that  day — not  that  day— 
because  I  wasn't  working  that  day. 

(In  answer  to  the  question,  by  the  Court,  "Well,  what 
were  you  doing  on  that  day?"  Witness  did  not  answer.) 

Yes,  I  often  carry  electrician's  tools  around,  whenever 
I  work.  I  was  up  until  December  carrying  them  around. 

I  ask  his  Honor  to  let  me  explain  my  matters;  how 


TWENTY  YEAES  IN  STATE'S  PRISON  143 

people  have  framed  me  up — in  1908 — the  former  con- 
viction is  put  against  me,  and  I  should  have  a  chance  to 
explain  those  former  convictions.  I  were  convicted,  but 
I  were  not  convicted  right.  I  plead  guilty  to  a  charge 
which  I  wasn't  guilty  of,  but  on  the  grounds  of  being 
away  two  and  one-half  years  and  I  didn't  have  any  wit- 
nesses at  that  time;  I  couldn't  get  my  witnesses  after 
2!/2  years,  but  at  the  same  time  I  was  indicted  in  March, 
and  ivent  up  to  plead,  and  pleaded  not  guilty,  and  I  was 
tried  and  I  was  sentenced  on  the  misdemeanor  and  sent 
to  Blackwell's  Island. 

And  while  I  am  in  the  Tombs,  I  have  perhaps  com- 
mitted a  foolish  deed  on  that  account  that  I  was  framed 
up,  and  they  changed  the  records  and  the  identification 
book  of  the  Tombs  will  show  it  also,  that  Officer  Dugan 
came  there  on  one  identification — (Defendant  not  allowed 
to  proceed). 

I  pleaded  guilty  of  burglary  in  the  third  degree — a 
felony — on  the  ground  I  had  no  witnesses  and  I  was 
promised  a  suspended  sentence  by  the  District  Attorney 
-Yes,  I  plead  guilty.  Why  no,  I  wasn't  imprisoned  for 
that.  I  was  kept  there  in  Matteawan.  Yes,  sir,  I  was 
sent  from  prison  to  Matteawan,  an  asylum  for  the  insane. 

(Defendant  being  instructed  not  to  go  into  any  detail 
of  former  convictions  or  the  reasons  therefore,  but  being 
permitted  to  make  any  explanation  about  the  present  case 
that  his  counsel  considered  advisable,  proceeded.) 

"Where  should  I  start  in  t  At  police  headquarters  I  was 
charged  with  unlawful  entry — (stopped  by  the  Court). 
When  I  was  taken  before  the  chauffeurs  for  identification, 
they  wanted  to  see  my  left  wrist  and  they  saw  my  left 
wrist,  and  then  they  looked  at  the  officer  and  one  of  them 
said,  "I  guess  that's  the  man."  And  the  other  one  hesi- 
tated and  the  officer  nodded  to  him,  and  he  said,  "Well, 
yes,  that 's  the  man. ' '  They  didn  't  examine  my  face  and 
I  have  marks  on  my  face  and  neck.  And  these  were  the 


144  TWENTY  YEARS  IN  STATE'S  PRISON 

chauffeurs  that  were  supposed  to  have  held  the  man  that 
did  run  away. 

I  wasn't  identified  in  the  57th  St.  Court.  I  was  taken 
inside  of  the  rooms  in  the  back,  and  the  charge  was  put 
against  me,  the  clerk  wrote  the  charge  down  and  asked 
me  if  I  pleaded  guilty  or  not  guilty,  and  I  pleaded  not 
guilty,  and  I  signed  my  name  to  the  paper  there. 

Re-Cross  Examination. 

No,  sir,  I  did  not  have  the  stuff — a  large  number  of 
articles  of  personal  property — on  me  that  the  police  of- 
ficers swore  that  they  found  on  me,  in  that  prior  con: 
viction  when  I  was  charged  with  having  burglarized  the> 
house  of  Alma  J.  Ellsworth. 

I  plead  guilty  because  it  was  two  years  and  six  months 
maybe  after  this  was  committed.  The  complainant  could 
be  gotten  any  time,  but  my  witnesses  couldn't  be  gotten, 
as  the  State  wouldn't  get  my  witnesses  on  my  expense. 
And  I  didn't  had  the  expenses  to  get  the  witnesses  and 
I  was  told  if  I  pleaded  guilty  I  will  be — sentence  will  be 
suspended.  That's  why  I  pleaded  guilty.  I  was  laying' 
two  months  and  a  half  in  the  Tombs  already  then. 

These  two  police  officers  did  find  2  pins  on  me.  When 
I  said  a  few  minutes  ago  that  they  didn't — they  said  a 
*  *  large  amount  of  stuff. ' '  Them  two  pins  didn  't  belong  to 
me.  They  were  bought  in  a  store.  This  woman,  when 
she  identified  her  property  was  mistaken.  She  didn't 
identify  me.  And  that's  the  reason  I  should  like  to  get 
the  identification  Book  from  the  Tombs. 

And  these  two  young  women  and  Mr.  Dale  who  have 
identified  me  here  are  also  mistaken. 

I  pleaded  guilty  in  August  after  two  months  and  a  half 
nearly,  and  that  was  after  serving  a  term  in  Matteawan. 
No,  the  reason  why  the  chauffeur  wanted  to  look  at  my 

HAND  WAS  NOT  THAT,  AT  THE  TIME  HE  STOPPED  ME  THAT  MY 


TWENTY  YEARS  IN  STATE'S  PRISON  145 

WEIST  WAS  CUT  BY  HIS  NAIL.  He  wanted  to  look  at  my 
wrist  and  examined  my  wrist,  then  he  shook  his  head. 

I  wish  to  state  a  few  more  points  in  this  case:  When 
I  came  out  from  Matteawan,  I  was  working  for  Mr. 
Berlion  and  I  was  stopped  several  times  by  police  of- 
ficers, and  later  on,  I  was  working  there  a  week  and  a 
half,  and  I  was  told  by  my  boss,  Mr.  Berlion,  that  I  am 
discharged,  and  I  asked  him,  "On  what  grounds?"  and 
he  said,  "I  can't  afford  it  to  bother  with  the  police*" 

And  so  this  is  the  reason  I  started  to  work  for  Mr.  Sil- 
verman.  After  I  quit  Mr.  Silverman,  when  the  work  was 
over,  I  started  in  for  myself,  and  I  took  contracts  which 
I  could  show  from  records  of  the  Board  of  Fire  Under- 
writers and  the  City  Building  Department,  where  I  put 
up  electric  signs  for  the  Chatham  Club,  at  6  and  8  Doyer 
St.,  and  this  I  lost  by  the  way.  I  came  out  from  Mattea- 
wan without  a  cent,  and  I  didn't  have  a  cent  or  a  pair  of 
shoes  on  my  feet,  and  I  worked  myself  up  and  tried  to 
do  right,  and  I  was  interfered  with  by  the  police  from  the 
time  I  was  out  of  there. 

(Stopped,  on  objection.) 

(The  Foreman  of  the  Jury  having  received  permission 
from  the  Court  inspects  defendant's  wrists.  In  answer 
to  his  question,  defendant  states) — 

"That  scar  on  my  wrist  I  done  myself  in  1908." 

(Following  dialogue  then  took  place  between  Eleventh 
Juror  and  defendant) : 

"Do  you  know  the  chauffeur?" 

"No,  I  don't." 

"Well,  how  does  he  come  to  ask  you  what  you  have  on 
your  left  wrist?" 

"I  don't  know  what  he  asks  me  for." 

"Well,  then,  he  must  have  caught  you  at  the  time  you 
were  there?" 

"I  don't  know." 


146  TWENTY  YEARS  IN  STATE'S  PRISON 

"Otherwise  he  wouldn't  know  you  have  a  wrist  like 
that?" 

"I  don't  know.    He  asked  me  to  show  my  left  wrist." 
"Well,  why?" 
"I  couldn't  tell  you." 

(At  the  request  of  Counsel  for  the  People  all  the  Jurors 
were  shown  defendant's  wrist.) 


TWENTY  YEARS  IN  STATE'S  PRISON  147 


prisoner's  Stor\>. 

Told  in  a  letter  to  Mr.  Dun  E.  Kimba.lt,  Probation  Officer. 

On  the  anniversary  of  the  birth  of  civil  liberty  in 
America,  I,  who  have  suffered  through  unjust  deprivation 
of  it  perhaps  more  than  but  few  other  men,  was  boren  in 
Allentown,  Pa,  July  4th  1877.  My  parents  had  emi- 
grated from  Austria  and  when  I  was  two  years  old  they 
returned  to  Europe,  there  I  was  given  a  good  education 
and  became  an  electrician  and  a  candidate  for  license  as 
an  electrical  engineer.  At  the  age  of  twenty  two  I  be- 
gan a  set  of  educational  journeys,  traversing  Europe, 
sailing  from  Antwerp  for  Eio  de  Janeiro,  thence  by  the 
steamer  Stutgarth  for  Yokohama  thence  to  Sidney,  Aus- 
tralia and  via  San  Francisco  to  New  York,  living  here 
on  an  allowance  of  125  Gulden,  about  $50,  pro  month 
from  home.  In  1899  I  returned  to  my  home  in  Schmigrot, 
Galicia  to  recive  an  inheritance  of  64000  Gulden  from 
my  Grandfather.  Eeturning  in  April  1900  I  banked 
$25400  in  the  Federal  State  Bank  later  investing  in  100 
Shares  of  Creston  Copper  Co.  Stock  at  $20  a  Share  on 
the  advice  of  the  president  Mr.  D.  Rothschild  and  find- 
ing the  investment  profitable,  still  another  150  Shares. 
By  November  I  had  less  than  $3000  in  the  bank  having 
been  informed  by  my  broker  H.  A.  Schlossal  that  if  I 
cant  send  more  margin  1.11  be  wiped  out. 
thinking  to  recoop  in  business  I  formed  a  partnership 
in  1901  with  S.  Cohn  and  we  went  into  the  Eestaurant 
business  at  312  Broome  Street.  By  Juli  of  that  year 
I  had  lost  everything  and  was  compelled  to  send  home 


148  TWENTY  YEARS  IN  STATE'S  PRISON 

for  money  recieving  $600  from  this  I  used  part  of  it  to 
take  my  jewelry  out  of  Pawn.  I  had  in  the  meantime 
secured  a  good  position  in  the  spliceing  department  with 
the  New  York  Edison  Co.  the  work  was  out  of  doors  and 
as  soon  as  bad  weather  started  I  fell  sick.  When  con- 
valescent my  doctor  advised  me  to  go  too  a  warm  climate 
so  I  secured  work  as  an  electrician  on  the  Steamship 
Curetiba  running  to  Cuba  and  eventualy  regained  my 
health,  going  to  Hobochen  after  several  voyages  I  had 
my  first  experience  of  American  police  methods  I  was 
sitting  in  Jack's  Cafe  with  a  young  lady  when  a  man 
began  to  offer  some  nice  articals  of  ladies  linen  for  sale 
he  was  persistent  seeing  that  the  young  women  with  me 
fancied  the  articals  so  I  bought  them  for  $8.  Later  we 
went  to  Gransberg's  Concert  Hall  where  we  were  when 
two  detectives  entered  and  place  me  under  arrest  for  the 
theft  of  the  articles.  I  was  charged  with  larceny,  put 
up  cash  bail,  was  compelled  to  wait  trial  and  lose  my 
position  or  lose  my  bail  and  when  tried,  though  I  had 
teen  witnesses  to  prove  my  purchase  of  the  articles  I  was 
fined  $5,  not  an  important  thing  save  that  it  placed  me 
on  the  records  as  a  criminal  offender  when  I  was  abso- 
lutely innocent. 

Going  to  Cuba  again  I  completed  a  contract  equipping 
the  home  of  Sr.  don  Almando  of  Newvitas  with  an  elec- 
tric plant  and  returned  to  New  York  to  find  that  the 
boyhood  sweetheart  I  had  left  in  Tarnow,  Galicia  wished 
to  join  me  and  become  my  wife  and  that  my  family  had 
send  me  $3000  for  this  purpose.  She  was  the  sweetest 
of  girls  and  looked  so  pretty  and  innocrent  as  she  leaned 
over  the  rail  of  the  Barbarossa  among  Feb.  9th,  1903,  that 
as  the  picture  rises  befor  me  and  I  think  of  the  quick 
tragedy  that  fell  upon  us,  it  seems  more  than  I  can  bear. 
We  were  married,  took  a  wedding  journey  to  San  Fran- 
cisco and  returning  prepared  a  home.  I  bought  a  cigar 
store  in  Second  Avenue  and  try  as  I  would  I  could  not 


TWENTY  YEARS  IN  STATE'S  PRISON  149 

succeed  and  in  desperation  tried  to  play  the  races  and 
recoop.  Soon  the  furniture  of  my  home  was  mortgaged 
and  the  cigar  Store  sold  for  much  less  than  its  value  to 
pay  my  debts.  Among  those  to  whom  I  was  in  debt  was  a 
group  of  men  of  whose  pursuits  I  was  by  no  means  cer- 
tain, two  of  them  called  one  day  at  my  home  in  my 
absence  and  told  my  wife  to  have  me  come  to  see  the  third 
a  man  named  D.  at  75  Second  Ave.  the  two  were  Eddy 
N.  and  Paul  H. 

I  went  to  D.  place  and  met  the  three  D.  took  me  to  one 
side  and  told  me  he  was  going  to  offer  me  a  chance  to 
pay  up  my  debts  and  get  on  my  feet. 
The  plan  was  that  I  was  to  take  a  position  which  N. 
could  not  fill  and  there  would  be  a  large  quantity 
of  jewelry  in  my  care  or  at  least  where  I  could  get  it. 
When  the  proper  opportunity  came  I  was  to  give  this 
to  N.  or  H.  stay  on  in  my  position  or  return  with  them 
to  New  York  as  I  chose.  If  I  did  not  go  in  with  them 
they  would  close  down  on  me  at  once.  I  was  in  desperate 
straits  and  my  wife  was  soon  to  become  a  mother,  at 
least  I  could  take  the  position  and  then  temporize  so  I 
pretended  to  accept,  they  provided  me  with  all  sorts  of 
references  with  an  asumed  name  and  by  way  of  a  Phil- 
adelphia Employment  agency  I  was  soon  in  the  Employ- 
ment of  a  wealthy  Mr.  Harrison  of  Glenside,  Pa.,  near 
Philadelphia. 

During  this  period  N.  and  H.  dogged  the  House  com- 
ing disguised  as  peddlers,  umbrella  menders  anything 
that  would  give  them  a  chance  to  get  near  the  house  or 
get  in  touch  with  me.  Worry,  distress,  separation  from 
my  little  wife  were  telling  on  me.  I  was  taken  sick  and 
was  treated  in  the  house  by  a  doctor  Kaiser  of  German- 
town,  shortly  befor  thanksgiving  day  I  was  up  and 
around  again  and  N.  reappeared.  I  did  not  know  what 
to  do.  to  tell  Mr.  Harrison  would  mean  my  dicharge. 
Thanksgiven  day  I  was  given  to  understand  that  on  the 


150  TWENTY  YEAES  IN  STATE'S  PKISON 

ground  not  beeing  quite  well  I  was  no  longer  wanted. 
I  was  told  by  Mrs.  Harrison  to  pay  the  bills  incurred 
by  my  sicknes  out  of  my  own  pocket.  I  went  to  my  room 
looking  out  of  tbe  window  I  seen  N.  hanging  about 
and  I  made  up  my  mind  to  yield  to  temptation.  At  once 
I  committed  my  first  and  only  crime — this  I  say  despite 
all  that  I  have  suffered.  I  took  jewelry  worth  $25000  and 
joined  N.  and  further  down  the  road  H.  All  three  re- 
turned to  New  York  and  the  package  was  placed  in  a 
safe  at  32  Second  Avenue,  my  poor  wife  was  overjoyed 
to  have  me  back  but  guessed  there  was  something  wrong, 
then  I  told  her  and  crying  "Oh,  Alfred,  what  have  you 
done. ' ' 

She  fainted. 

She  planned  then  and  there  for  me  to  secure  the  jew- 
elry and  that  she  would  take  it  back  to  Mrs.  Harrison. 
She  went  alone  to  secure  the  package  but  the  holder  would 
not  give  it  up  so  I  went  and  receipted  for  it.  we  were 
afraid  to  go  home  dreading  the  revenge  of  N.,  H.  D.  so 
we  went  to  the  home  of  a  supposedly  good  friend  up 
town  and  told  him  the  whole  story,  he  asked  us  to  stay 
there  till  everything  was  settled,  two  years  before  I 
had  been  his  benefactor  in  many  way's  and  went  security 
for  the  verry  house  that  now  sheltered  him. 
Nevertheless  to  secure  the  reward  of  $500  he  hastened 
to  betray  us  befor  my  little  wife  could  arange  to  bring  the 
jewelry  back.  I  was  arrested  in  his  home  taken  to  police 
headquarters  on  what  I  had  told  him  N.  and  H.  allso  were 
arrested  and  brought  to  police  headquarters.  While  there 
at  a  late  houer  N.'s  girl  came  to  see  me  and  told  me  that 
since  I  was  in  for  it,  if  I  would  keep  quiet  they  would 
get  me  out  of  trouble.  When  arraigned  in  Tombs  Police 
court  preparatory  to  extradition  to  Pennsylvania  N. 
and  H.  had  able  councel  and  in  some  way  their  discharge 
was  continued  and  they  disappeared.  I  apealed  to  those 
I  had  aided  when  I  had  plenty  but  none  responded,  there 


TWENTY  YEAES  IN  STATE'S  PRISON  151 

was  but  one  faithful  being — my  sick,  half  frantic,  penny- 
less  little  wife.  She  came  to  me  dayly  helping  all  she 
could  while  waiting  to  be  extradicted. 
When  taken  to  Norristown  Pa  jail,  I  borrowed  from 
an  officer  the  stamp  to  send  her  the  following  letter  know- 
ing that  she  had  no  funds  to  come  to  Norristown  and  that 
I  was  doomed  and  was  only  a  load  about  her  young  neck. 

Dec.  the  second  1903. 
Dear  Sophie 

By  the  time  you  receive  this  I  will  be  behind  bars  in 
the  Norristown  jail.  It  will  be  no  use  for  you  to  try  to 
speak  to  Mrs.  or  Mr.  Harrison.  In  the  first  place  they 
will  not  admit  you  and  in  the  second  they  are  heartless 
people.  Now  Sophie  dear,  it  will  be  a  long  time  befor 
I  can  be  with  you  again  so  forget  me  but  forgive  me  for 
the  disgrace  I  have  brought  upon  you  I  am  not  worthy  to 
be  called  your  husband  any  longer,  you  are  young  and 
do  not  let  me  stand  in  the  way  of  your  life's  happiness. 
Should  our  chield  be  born  and  live  you  may  have  to  put 
it  in  an  institution  but  for  your  own  sake  dear  drop  me. 
Let  me  know  where  you  put  the  chield.  I  will  agree  to 
anything  that  you  undertake  for  your  future. 

Your  unfortunate 

Alfred, 

On  the  8th  of  Dec.  I  was  taken  into  court  and  gave  a 
plea  of  guilty.  I  was  pennyless,  undefended,  unadvised 
and  I  was  sentenced  immediately,  two  charges  were  made 
out  of  the  one  and  my  criminal  record  from  Hobochen 
told  of  by  the  constabler  who  made  the  transfear  from 
New  York  to  the  Norristown  jail.  I  was  given  the  max- 
imum on  both  a  totel  of  five  year's  and  $1000  fined. 
The  same  day  I  was  hurried  to  the  Eastern  Penitentiary 
and  two  days  later  this  letter  came  to  me : 


152  TWENTY  YEARS  IN  STATE'S  PRISON 

December  the  7th,  1903. 
Dear  and  loving  Alfred 

I  received  your  letter  and  I  must  tell  you  that  I  have 
no  intention  of  doing  as  you  wish  me  to  do.  Do  you 
remember  the  day  under  the  chipper  (used  in  a  hebrew 
marriage  Cerremony)  where  we  promised  each  other  that 
nothing  but  death  should  part  us.  I  shall  keep  that 
promise.  Mr.  Moskowitz  was  here  and  took  the  piano  and 
furniture  for  the  money  he  lent  you  on  them.  When  he 
asked  for  you  I  had  to  tell  him  of  your  trouble  he  felt 
verry  sorry  for  you.  and  gave  me  $50  to  get  a  lawyer. 
So,  dear,  cheer  up.  Trust  in  the  one  above  as  I  do.  I 
will  sell  what  there  is  left,  and  put  the  trunks  in  storage. 
Let  me  know  when  your  are  going  to  be  tried  so  that  I 
could  get  there  and  have  a  lawyer  to  defend  you.  the 
three  responsible  for  your  troble  have  left  the  city.  Dear, 
don't  write  me  any  more  letters  like  the  one  you  did.  I 
will  see  you  Tuesday. 

From  your  loving  wife 

Sophie 

My  reply  told  her  of  the  way  in  which  I  had  been  rail- 
roaded. She  left  New  York  immediately,  went  to  Mr. 
Harrison's  office  and  was  refused  admission,  a  compe- 
tent attorney  was  retained,  called  on  me  and  got  the 
fact's.  He  said  I  was  entitled  to  an  appeal  from  my 
sentence  as  there  was  but  one  charge  of  larceny  instead 
of  two.  It  would  cost  $500  to  effect  it  however. 
It  was  bitter  winter  weather  nearing  Christmas,  my 
little  wife  went  here  and  there  trying  to  raise  the  money 
but  she  took  sick  from  exposure  and  was  compelled  to 
accept  the  invitation  of  a  cousin  in  Cincinnati  to  come 
there  as  the  period  of  her  confinement  was  drawing  near. 
I  shall  never  forget  that  parting  one  January  day.  In 
a  few  days  she  gave  birth  to  a  boy  but  one  day  the  Chap- 


TWENTY  YEARS  IN  STATE'S  PRISON  153 

lain  came  to  my  cell — it  was  after  week's  of  silence,  agony, 
suspense — my  Sophie  had  died  the  day  after  the  child  was 
born,  unable  to  raise  the  amount  for  an  apeal  in  my  case 
I  gave  up  hope  to  gain  liberty  befor  my  sentence  expired 
It  was  the  8th  of  June  1907  when  I  walked  forth  in  the 
light  of  day  once  more.  In  a  few  day's  I  was  able  to 
make  my  way  to  Cincinnati  and  for  the  first  time  saw  my 
own  child's  face  in  my  cousin's  home.  After  a  short  stay 
I  returned  to  New  York  with  the  boy  and  gave  him  in 
board  with  a  Mrs.  Sneider  a  friend  of  my  deceased  wife 
from  the  old  country.  I  obtained  a  position  as  Electrician 
in  Gloversville  which  lasted  three  months,  but  I  saved  my 
wages  and  made  conciderable  in  overtime,  returning 
to  New  York  I  sold  all  the  rest  of  inlaid  work  which  I 
made  while  in  the  E.  S.  P.  It  was  only  a  few  day's  that  I 
had  been  in  New  York  when  I  was  arrested  in  an  Eighth 
Street  restaurant  by  Detective's  Kinsly  and  Dugan  and 
charged  with  vagrancy!  Vagrancy,  when  I  had  eighty 
dollars  in  my  pocket  and  a  bank  book  showing  $257  on  de- 
posit in  the  Gloversville  Bank.  I  was  taken  to  police 
Headquarters  locked  up  over  night,  the  next  morning 
]ined  up  before  the  detectives  and  orders  were  given  to 
arrest  me  whenever  they  saw  me ! 

Of  course  when  arraigned  in  Jefferson  Market  Police 
Court  I  was  discharged  but  it  had  added  new  disgrace  to 
me  and  cost  me  $50  for  a  lawyer  and  expenses.  In  Octo- 
ber 1907  I  went  into  the  restaurant  business  with  E. 
Poppich  at  155  Allen  Street.  As  the  place  was  a  day  and 
night  Restaurant  we  changed  hour's  weekly,  releaved 
from  night  work  one  day  I  went  to  collect  a  bill  owed  us  in 
Av.  A.  near  Sixth  Street  and  returning  was  not  a  half 
block  from  the  home  of  the  man  who  had  paid  the  bill 
befor  I  was  arrested  taken  to  headquarters,  from  there 
to  court,  charged  with  unlawful  entry.  Magistrate  Butts 
on  their  false  testimony  and  on  my  previous  record  held 
me  for  special  Session's.  In  default  of  Bail  I  was  com- 


154  TWEXTY  YEARS  IX  STATE'S  PRISOX 

mitted  to  the  Tombs  prison.  "When  tried  I  was  dis- 
charged on  the  testimony  of  the  man  who  had  paid  the 
bill  at  the  verry  time  the  supposed  crime  was  beeing  com- 
mitted acording  to  the  detectives,  regaining  my  liberty  I 
found  my  partner  had  sold  the  Eestaurant,  without  my 
knowledge  and  left  the  City,  again  I  lost  $125  of  hard 
earned  money  through  this  unwaranted  arrest.  While 
Boarding  with  Mr.  &.  Mrs  Sneider  (the  same  Family  that 
took  care  of  my  boy)  I  made  the  acquaintance  of  a  verry 
worthy  woman  a  widow  with  two  children  who  was  verry 
good  to  my  now  sick  little  Boy.  She  and  I  decided  to 
marry  and  establish  a  home.  I  bought  out  a  Delicatessen 
and  Lunch  Eoom  at  142  East  117  Str.  and  established  a 
home  in  the  same  house,  progressing  verry  nicely  we  in- 
tended to  get  married  in  February  1908  but  on  account 
of  my  Boy's  sudden  illness  postponed  ouer  plan,  the  end 
of  Febrary  I  received  a  threatening  letter  demanding 
$200  this  I  took  to  the  police  Station  there  was  informed 
to  go  to  police  Headquarters,  to  me  this  ment  self 
protection,  never  would  I  apeal  to  people  who  have 
tryed  to  ruin  me  who  were  the  cause  of  me  loosing  over 
$150  and  sufferings  behind  bars  on  two  arrests  without 
provocation. 

the  afternoon  privious  to  my  arrest  in  March  1908  I 
had  decided  to  buy  a  revolver  in  a  down  town  second 
hand  Store,  this  remark  I  had  made  in  presence  of  a 
frequent  Patron  of  the  place  who  said  that  he  allso  is 
going  down  town  and  would  come  along.  I  bought  a 
revolver  in  a  second  hand  store  down  town  and  seeing 
some  other  thing's  I  needed  I  bought  a  pair  of  pliers,  a 
putty  knife.  It  was  lucky  I  did  not  buy  some  more  tools 
though  the  friend  with  me  called  my  attention  to  them 
as  bargains.  We  then  parted.  After  concluding  every- 
thing down  town  and  spending  an  houer  or  so  with  my 
sick  boy  at  Mrs.  Sneider 's  I  set  out  for  Home.  In  the 
subway  Station  at  spring  Str.  while  paying  for  my  fare 


TWENTY  YEAES  IX  STATE'S  PEISOX  155 

I  again  seen  this  party  entering  and  with  the  remark 
well,  well,  just  in  time  I  paid  his  fare,  together  we  left 
the  Station  at  116  Street  &•  Lenox  Avenue  and  aproach- 
ing  117th  Str.  Kinsly  and  Dugan  stepped  out  of  a  hall- 
way and  grabbed  me  leaving  the  other  party  unmolested 
took  the  things  I  had  bought  wrapped  up  from  my  pocket 
and  while  doing  this  a  piece-  of  black  cloth  was  picked 
from  the  ground  along  side  of  me.  this  they  said  was  in 
my  pocket.  I  now  recalled  certain  suspicious  action's 
of  my  friend  or  rather  acquaintance  and  I  realized  that 
he  was  a  police  "stool  pigeon"  and  "framer."  I  was 
so  incensed  that  I  reached  for  him.  He  had  deliberately 
entrapped  me  in  an  innocent  proceeding  that  looked 
verry  black,  the  next  instant  one  of  the  detectives  had 
laid  me  out  with  a  black  jack.  I  regained  consciousnes 
in  a  Cell  in  126th  Str.  Police  Station  and  when  I  wanted 
to  call  a  messenger  to  inform  my  friends  of  what  had 
happened  I  found  orders  had  been  left  to  allow  me  com- 
municate with  no  one.  It  was  the  old  round  again. 
Headquarters,  Police  Court  and  Tombs.  I  was  charged 
with  carrying  concealed  weapon  and  carrying  Burglar's 
tools.  Later  a  charge  of  Burglary  was  added,  this  was 
based  on  two  allmost  valueless  stick  pins  taken  from 
my  muffler  and  necktye  at  the  arrest. 
At  the  hearring  on  the  charge  of  Burglary  I  was  lined 
up  in  Tombs  Police  court  with  six  prisoners  for  identi- 
fication. Among  them  I  was  the  only  one  wearring  a 
black  Tie,  the  only  one  with  a  black  overcoat  and  the 
shortest  of  all.  I  protested  asking  that  the  identification 
be  held  in  Tombs  prison,  but  in  vain,  the  first  (a  women) 
came  in  and  identified  an  Italian  prisoner, 
while  this  was  going  on  detective  Kinsly  left  the  court 
room  the  doors  were  wide  open  and  I  seen  a  face  look- 
ing through  the  opening  between  the  door  and  door  frame, 
the  second  a  man  came  in  and  put  his  hand  on  me  with- 
out looking  at  any  one  else.  I  could  have  proven  my 


156  TWENTY  YEAES  IN  STATE'S  PRISON 

innocent  but  fearing  the  arrest  of  the  women  I  was  en- 
gaged to  I  waived  examination. 

two  days  later  Kin  sly  and  Dugan  came  with  a  nother 
women  and  the  verry  man  to  whom  Kinsly  had  pointed 
me  out  in  police  court,  to  the  Tombs  prison  for  Identi- 
fication. I  again  was  lined  up  and  the  women  allso  identi- 
fied an  Italian  prisoner,  walking  to  my  cell  Dugan  pointed 
me  out  to  the  women  and  she  in  return  said  that  I  was 
the  man.  detective  Dugan  then  tryed  to  besway  Mr. 
Hanly  Depputy  Warden  of  Tomb  prison  to  let  the  second 
identification  stand  beeing  tried  in  Special  sessions  on 
the  charge  of  carreing  concealed  weapon  I  was  remanded 
for  sentence,  and  within  that  same  week  allso  arraigned 
in  General  session  to  plead  to  two  indictments. 
At  the  date  sentence  was  pronounced  in  Special  ses- 
sions the  detective  testified  that  the  revolver  taken  from 
me  was  charged  and  produceing  my  previous  record  I 
received  a  six  months  sentence. 

My  little  boy  had  grown  worse  and  on  the  verry  day 
I  was  brought  into  court  he  died  asking  for  me  the  last 
words  he  said. 

those  who  knew  the  circumstances  secured  a  bondsman, 
a  Mr.  Zimmerman  to  go  on  my  $1500  bond  that  I  might 
attend  his  funeral  but  the  District  Attorney  had  my 
bond  raised  to  $5000  more  than  Zimmerman  could  give. 
Pains  behind  my  ear  became  unbearable  from  the  blow 
I  had  received  from  the  black  jack,  grief  over  the  loss 
of  my  child,  beeing  even  deprived  to  have  the  last  look 
at  him.  sentenced  on  a  misdominor  and  to  serve  it.  six 
month's  later  to  be  tried  on  two  fellony  charges,  the 
whole  thing  became  more  than  I  could  bear  and  making 
a  rasor  ege  knife  from  a  spoon  handle  I  cut  my  throat 
and  wrist  but  in  Bellvue  Hospital  they  landded  me  back 
to  life  despite  myself.  Befor  I  was  realy  well  I  was 
taken  back  to  the  Tombs,  yet  in  an  unfit  Physical  con- 
dition I  was  sent  to  the  penitentiary  on  the  carrying 


157 

concealed  weapon  charge,  there  I  was  operated  upon  the 
Mastoid  and  without  given  a  chance  to  escape  trans- 
ferred to  Matteawan  State  hospital. 

(Here  follow  a  number  of  pages  containing  the  Prisoner's  observa- 
tions and  his  experiences  in  Matteawan,  They  are  omitted  as  not  being 
germane  to  our  present  purpose.) 

I  was  arrested  at  the  door's  of  the  Institution  on  the 
two  indictments  remaining  in  the  district  attorney's 
office  and  brought  back  to  New  York  to  be  tried,  there 
was  another  line  up  in  headquarters  befor  the  detectives 
and  again  they  were  told  to  arrest  me  whenever  they  saw 
me.  the  paprs  required  my  return  to  the  tombs  and  the 
taking  of  me  to  police  headquarters  was  outside  of  the 
police  authority. 

When  I  was  once  more  in  the  Tombs  I  found  that  my 
long  stay  in  Matteawan  had  resulted  in  the  complete 
dispersal  of  my  defence  against  the  two  indictments. 
Rev.  Dr.  Radin  the  Rabbi  who  had  taken  an  interest  in 
my  case  and  been  at  my  bedside  in  Bellvue  Hospital 
making  an  investigation  was  dead  more  than  a  year  be- 
for. the  women  to  whom  I  have  referred  as  buying  those 
pins  had  sold  my  place  over  two  year's  ago,  moved  and 
was  not  to  be  found.  She  had  placed  in  Dr.  Radin 's 
hand 's  the  proof  that  the  pins  were  bought,  both  of  them 
for  $3.75  trough  witnesses,  that  were  in  the  Store  at  the 
time  of  her  purchase.  Though  my  defence  was  gone 
and  my  witnesses  not  to  be  found,  the  pins,  the  mask,  a 
fals  but  mute  witnes  the  Revolver  and  at  last  the  man 
who  was  induced  by  the  detectives  to  identifi  me  in 
police  court,  all  this  was  in  the  hand's  of  the  district 
Attorney.  But  fortunately  I  had  a  chance  to  speak  to 
the  new  assistant  district  Attorney  who  felt  that  the  case 
against  me  was  just  what  I  have  shown  it  to  be  and  I 
was  told  that  if  I  pled  guilty  I  would  be  properly  treated, 
this  promise  was  kept  and  I  was  set  free  by  Honable 


158  TWENTY  YEAES  IN  STATE'S  PEISON 

Judge  Swan  and  was  told  to  go  back  to  Europe  within 
one  month.  My  condition  was  pitiable  funds,  clothing, 
tools,  money  gone  discharged  pennyless  from  Mattea- 
wan,  I  went  to  the  Volunteers  of  America  in  fourteenth 
Street  to  their  bureau  for  just  such  as  I.  I  found  I  must 
work  for  a  month  or  six  weeks  for  them  befor  I  would 
be  given  tools  and  that  in  other  ways  the  new  start  was 
made  so  difficult  that  I  had  more  chance  with  my  me- 
chanical skill  trying  it  alone  so  I  thanked  the  official 
of  the  bureau  and  left.  Walking  all  the  way  up  to  117th 
Street  I  visited  the  block  in  which  I  had  had  my  place  of 
business  when  the  two  officers  and  the  stool  pigeon  con- 
trived the  false  charges  against. 

My  place  was  in  the  hands  of  strangers  and  as  I  stood 
looking  at  it  my  eyes  filled  with  tears, 
the  barber  a  few  doors  away  recognized  me  and  called 
me.  he  told  me  the  whole  story  of  how  my  little  property 
had  been  disposed  of  during  my  imprisonment  and  when 
he  heard  all  that  had  befallen  me  he  was  most  sympa- 
thetic. I  stayed  all  night  and  the  next  morning  set  out 
to  look  for  work  and  got  it  but  having  no  tools  was  com- 
pelled to  work  for  less  wages,  less  than  a  week  later  two 
men  stopped  me  on  19th  Street.  I  did  not  know  them 
but  they  were  central  Office  men  and  knew  me.  Having 
my  employers  tools  and  material  in  my  hand  they  did  not 
dare  arrest  me  but  in  some  way  my  employer  found  out 
my  predicament  and  I  lost  my  place.  I  went  to  the 
crimminal  court  Building  to  apeal  to  Honable.  Judge 
Swan  but  was  informed  that  his  Honor  was  on  vacation. 
I  quickly  got  a  nother  position  through  a  letter  to  the 
Cloak  and  Suit  Manufacturer  protective  association 
beeing  taken  by  Mr.  Ike  Silverman  into  the  work  of  the 
Fidelity  Secret  service  buerau  at  $3  per  day  and  ex- 
penses I  had  told  him  of  my  predicament  but  have  prom- 
ised to  be  honest,  upright  and  faitful. 
I  worked  without  complaint  against  me  or  my  work  till 


TWENTY  YEAKS  IN  STATE'S  PRISON  159 

a  change  ocurred  in  the  buerau  which  resulted  in  the 
release  of  nearly  all  its  Staff,  at  the  same  time  I  have 
taken  a  side  contract  to  repair  during  the  evening  two 
Automobiles,  so  that  I  may  raise  and  make  sufficient 
money  to  start  for  myself. 

the  beginning  of  October  1910  I  was  able  to  set  up  my 
own  little  business  having  saved  my  wages  and  bought 
tools  and  material  I  had  many  smal  contracts.  I  did 
verry  well  and  was  accuated  by  two  strong  motives,  first 
to  show  Dr.  Lamb  of  Matteawan  that  he  is  not  the  Law, 
second  to  prove  to  Honbl.  Judge  Swan  that  I  am  worthy 
of  the  confidence  his  honor  had  placed  in  me  by  paroling 
me.  I  was  compelled  to  hire  help  in  my  work  it  so  in- 
creased but  the  detectives  kept  at  thir  hounding  and  one 
day  I  was  humiliated  by  two  of  them  befor  my  own  men, 
I  was  compelled  to  go  to  Judge  Swan  and  apeal  to  him. 
his  Attendant  brought  me  word  that  I  should  keep  on 
doing  what  I  am  doing  now  and  his  honnor  will  take  a 
hand  in  my  behalf,  on  a  nother  ocasion  I  was  met  by 
Ditective  Thalt  who  said  "you  will  squeal"  the  next 
time  you  get  to  Matteawan  you  go  there  for  good."  I 
took  a  contract  at  6-8  Doyer  Str.  where  I  lost  so  heavily 
trough  irresponsible  ownership  that  it  nearly  floored  me. 
Work  fell  off  owing  to  the  winter  season  and  in  Decem- 
ber I  had  to  give  up  my  place,  just  befor  Christmas  I 
went  to  Cincinnati  to  the  home  of  my  cousin  to  get  him 
to  back  a  contract  offered  to  equip  a  large  apartment 
House.  But  he  could  not  do  so  in  reddy  cash  and  I  re- 
turned to  New  York  in  January,  the  15th  of  the  same 
month  I  wrote  a  letter  to  a  party  asking  to  assist  me  to 
get  with  some  Railroad  Company,  the  18th  of  January 
the  party  called  at  Mills  Hotel  where  I  was  stopping 
and  promised  to  place  me.  from  that  day  till  the  day  I 
reieved  employment  at  my  trade  with  the  InterborougE 
Eailway  Co.  I  have  seen  the  paty  dayly  eccept  Sunday 
the  first  of  February  I  came  from  work  to  meet  the  party 


160  TWENTY  YEARS  IN  STATE'S  PRISON 

trough  whom  I  received  my  position  at  Mills  Hotel  and 
during  the  evening  played  a  few  games  of  Chess  and  at 
last  joined  a  get  up  game  of  Checkers.  I  retired  about 
9.30  p.  m.  about  12  p  m  two  detective 's  came  to  my  rooms 
and  arrested  me  took  me  with  them  to  45th  Street  befor 
two  Chaffeurs. 

"there  is  your  man"  said  one  of  them  they  looked  me 
over  then  I  was  taken  to  the  front  door  of  a  house  farther 
on  One  of  the  detectives  went  in  leaving  me  with  the 
other  for  about  five  minutes.  He  came  out  and  said 
all  right  then  both  took  me  into  the  house  and  confronted 
me  with  a  stranger  who  said 

"thats  the  man" 

Now  I  was  hauled  to  police  headquarters  and  charged 
with  beeing  a  suspicious  person,  "arrested  in  45th 
Street"  In  the  morning  I  was  araigned  befor  Magistate 
Oconor  in  57th  Street  Court,  there  I  was  charged  with 
"unlawful  entry"  and  I  was  committed  to  the  Tombs. 
the  verry  day  I  was  to  be  tried  in  Special  Session,  I 
was  taken  to  General  Sessions  Part  I  where  I  found  I  had 
been  indicted  for  "Burglary  in  the  second  degree  second 
offense" 

Should  it  be  possibl  for  me  to  obtain  a  feare  trial  by 
Judge  and  jury  I  will  prove  that  I  have  absolutely  no 
knowledge  of  the  crime  I  am  charged  with." 

ALFRED  V.  SCHITOFSKY. 


TWENTY  YEARS  IX  STATE'S  PRISON  161 


Stories  of  IDartoue  TKHttnesees. 

TOLD  IN  AFFIDAVITS. 

Alfred  V.  Schwitofsky,  being  duly  sworn,  deposes  and 
says :  I  am  the  defendant  in  the  above  entitled  action.  I 
was  charged  in  and  by  the  indictment  preferred  against 
me  with  the  crime  of  burglary  in  the  second  degree  and 
assault  in  the  first  degree  as  a  second  offence,  and  was 
brought  on  for  trial  before  Hon.  Thomas  C.  O 'Sullivan, 
a  Judge  of  this  Court  on  or  about  the  1st  day  of  June, 
1911,  and  after  such  trial  before  the  said  judge  and  a 
jury,  I  was  convicted,  and  thereafter  I  was  sentenced  to 
a  term  of  imprisonment  at  States  Prison  for  twenty 
years,  which  sentence  I  am  now  undergoing  in  the  Clinton 
Prison  at  Dannemora,  having  been  transferred  to  the  said 
prison  from  the  States  Prison  at  Ossining. 

Upon  my  trial  it  appeared  that  there  was  a  scar  upon 
my  left  wrist  which  was  claimed  to  have  been  inflicted 
as  a  result  of  a  struggle  between  one  Frank  Harold  and 
myself  on  the  19th  day  of  January,  1911,  when  it  was 
claimed  the  said  Frank  Harold  forcibly  took  hold  of  me 
and  took  from  me  a  revolver,  and  in  doing  so  it  was 
claimed  the  said  Frank  Harold  got  hold  of  my  left  wrist 
and  embedded  his  finger  nails  into  my  left  wrist  and 
scratched  the  same  and  tore  the  skin  thereof. 

Upon  my  trial  there  was  exhibited  to  the  jury  scars 
upon  my  left  wrist,  and  it  was  claimed  and  argued  that 
those  scars  were  the  result  of  the  struggle  with  Mr.  Frank 
Harold,  and  as  corroborative  proof  of  my  guilt. 

I  desire  to  state  that  the  said  scars  on  my  left  wrist 
were  caused  and  brought  about  solely  and  exclusively  by 
reason  of  the  fact  that  I  inflicted  wounds  upon  my  left 


162  TWENTY  YEAES  IN  STATE'S  PRISON 

wrist  about  three  years  ago  while  confined  in  the  City 
Prison  awaiting  trial,"  at  which  time  I  cut  the  inside  por- 
tion of  my  left  wrist  with  a  sharpened  spoon  with  a 
suicidal  intent  and  severed  the  arteries  of  my  left  wrist 
and  I  was  taken  to  the  Bellevue  Hospital  where  I  received 
treatment  for  the  same. 

There  are  no  scars  on  the  outside  portion  of  my  left 
wrist  and  I  have  had  the  said  wrist  carefully  examined 
under  a  microscope  by  Dr.  Julius  B.  Ransom,  the  Prison 
Physician  of  Clinton  Prison,  who  has  stated  to  me  as  well 
as  made  an  affidavit  that  there  are  no  scars  or  evidences 
of  any  scars  on  the  outer  side  of  my  left  wrist.  Upon  my 
trial  I  was  defended  by  Mr.  William  G.  Kier  and  Walter 
H.  Carpenter,  Esq.,  both  of  whom  were  assigned  to  me 
by  the  Court;  and  no  effort  was  made  by  my  said  counsel 
to  establish  the  fact  that  the  scars  on  the  outside  of  my 
left  wrist  was  the  result  of  my  own  act,  committed  while 
intending  to  commit  suicide  some  years  ago,  and  no  effort 
was  made  to  establish  that  the  person  whom  Frank  Har- 
old caught  hold  of,  had  cuts  on  the  outside  of  the  left 
wrist.  I  can  only  account  for  that,  that  in  the  hurry  of 
my  said  trial,  my  said  counsel  omitted  to  prove  those 
facts  and  I  am  now  advised  that  the  said  facts  were  es- 
sential and  if  properly  explained  would  probably  have 
resulted  differently. 

In  view  of  the  foregoing  facts,  I  ask  that  the  Court 
take  evidence  in  support  of  my  motion  for  a  new  trial  and 
with  that  end  in  view,  I  ask,  under  Subdivision  7  of  Sec- 
tion 465  of  the  Code  of  Criminal  Procedure,  that  my  per- 
sonal attendance  be  enforced,  in  order  that  I  may  give 
evidence  on  the  subject. 

ALFRED  V.  SCHWITOFSKY. 
Sworn  to  before  me  this 

21st  day  of  December,  1911. 

LANCE  M.  PARSONS, 
(Seal)  Notary  Public. 


TWENTY  YEAES  IN  STATE'S  PEISON  163 

AFFIDAVIT  OF  LEO  GELSKY. 

Leo  Gelsky,  being  duly  sworn,  deposes  and  says :  I  am 
an  inmate  of  the  State  Keformatory  at  Elmira,  New 
York,  my  consecutive  number  being  20524. 

I  recall  about  19th  day  of  January,  1911,  and  the  going 
to  the  residence  of  Theodore  B.  Dale  at  No.  71  West 
45th  Street,  New  York  City,  at  about  9  o'clock  that  morn- 
ing, with  a  companion  whose  name  I  decline  to  disclose. 
My  said  companion  was  admitted  to  Mr.  Dale 's  house  and 
he  had  in  his  possession  a  promissory  note  for  $100, 
payable  to  me  and  signed  by  the  said  Dale,  and  a  letter 
from  me  to  Mr.  Dale  requesting  him  to  pay  the  amount 
of  the  note  to  my  companion.  My  reason  for  giving  tlit 
note  with  the  letter  to  my  companion  was  that  Mr.  Dale 
had  instructed  his  servants  not  to  admit  me  to  his  house. 

About  five  minutes  after  my  companion  had  been  ad- 
mitted to  Mr.  Dale's  house,  he  ran  out  of  the  front  door 
by  which  he  had  entered,  followed  by  Mr.  Dale  who  cried 
' '  Stop  thief, ' '  and  caused  a  crowd  to  gather.  In  front  of 
the  hotel,  and  on  the  opposite  side  of  the  street  from  Mr. 
Dale's  house  and  about  200  feet  eastward,  my  companion 
was  stopped  by  a  chauffeur,  who  came  from  the  taxicab 
starter's  office  on  the  sidewalk  in  front  of  the  said  hotel. 
The  chauffeur  held  my  companion  until  Mr.  Dale  came 
up,  when  my  companion  in  Mr.  Dale's  presence  accused 

him  (Mr.  Dale)  of  having  attempted  to  commit  

upon  him,  whereupon  the  chauffeur  allowed  my  com- 
panion to  go,  and  we  went  to  6th  Avenue  and  left  the 
neighborhood  in  a  street  car. 

My  companion  left  New  York  for  the  West  in  January, 
and  I  have  not  seen  him  since. 

On  or  about  the  24th  day  of  January,  1911,  I  sent  an- 
other messenger  to  Mr.  Dale's  house,  demanding  the  $100 
that  was  due  me,  and  was  arrested  by  Detective  Talt,  be- 
ing arraigned  before  Magistrate  O'Connor  in  the  East 


164  TWENTY  YEABS  IN  STATE'S  PKISON 

57th  Street  Police  Court.  From  the  Police  Court  I  was 
taken  to  another  room  in  the  same  building  by  a  detective 
named  Dungate,  where  I  found  Mr.  Dale  together  with 
Detectives  Talt,  Browne  and  one  other  whose  name  I  did 
not  know. 

In  this  room  I  was  shown  a  photograph  by  Detective 
Dungate,  which  I  was  told  had  been  identified  by  Mr. 
Dale  as  that  of  my  companion  who  had  entered  Mr. 
Dale's  house  on  the  morning  of  about  January  19th.  I 
did  not  recognize  the  photograph,  which  was  not  that 
of  my  former  companion,  and  I  told  Detective  Dungate 
so.  Afterward  a  Detective  took  me  down  to  the  police 
court  prison,  and  on  the  way  beat  and  kicked  me,  and 
told  me  that  if  I  did  not  identify  the  photograph  as  that 
of  the  man  they  told  me  to,  I  would  be  more  severely 
beaten,  and  he  the  Detective  would  see  that  I  got  fifteen 
years  for  attempting  to  blackmail  Mr.  Dale.  I  was 
frightened,  and  afterward  answered  "yes"  to  all  ques- 
tions put  by  Detective  Browne  and  Talt  after  which 
Schwitofsky  was  arrested. 

As  a  matter  of  fact  I  had  never  spoken  to  Schwitofsky 
but  once  in  my  life,  on  which  occasion  I  played  a  game 
of  checkers  with  him  at  the  Mills  Hotel  in  Eivington 
Street.  He  was  not  with  me  on  the  morning  of  about 
January  19th,  when  I  went  to  West  45th  Street  with  my 
aforementioned  companion,  who  was  admitted  to  Mr. 
Dale's  house,  and  I  had  never  seen  him  outside  of  the 
Mills  Hotel  until  after  he  was  arrested  and  charged  with 
the  alleged  burglary  at  Mr.  Dale's  house. 

In  February,  1911,  while  in  the  Tombs  prison,  I  made 
a  full  confession  in  writing  to  the  Rev.  Dr.  Jacob  Gold- 
stein, the  Jewish  Chaplain  of  the  Tombs,  of  the  part  I 
had  played  in  bringing  about  the  arrest  of  Schwitofsky 
and  offered  to  do  anything  in  my  power  to  further  the 
ends  of  justice  in  his  case,  aside  from  giving  the  name 
of  my  companion  on  the  morning  of  about  January  19th. 


TWENTY  YEARS  IN  STATE'S  PRISON  165 

I  also  told  my  attorney,  Neil  Olcott,  2nd,  of  the  wrong  I 
had  done  Schwitofsky,  and  at  my  request  Mr.  Olcott 
wrote  to  Schwitof  sky's  attorney,  informing  him  that  I 
was  anxious  to  give  evidence  in  his  client's  favor.  I  was 
not  called  as  a  witness  at  Schwitof  sky's  trial,  however. 
I  first  met  Mr.  Dale  one  evening  early  in  January, 
1911,  in  a  "penny  arcade"  on  14th  Street,  where  he  ac- 
costed me  and  offered  to  get  me  a  job,  asking  me  to 
meet  him  at  6th  Avenue  and  45th  Street  at  8  o'clock. 
I  met  him  there  and  he  invited  me  to  his  house,  where  he 
injured  me  severely  in  an  attempt  to  commit  a  crime 
against  nature  upon  me  while  I  was  asleep.  It  was  as 
compensation  for  these  injuries  that  he  gave  me  the 
promissory  note  of  $100,  he  having  given  me  the  sum  of 
$5  in  cash  that  same  evening. 

LEO  GKLSKY. 

Sworn  to  before  me  this  28th 
day  of  October,  1911. 
ERNEST  D.  PRITCHARD, 
Notary  Public, 
Chemung  Co., 
New  York  State. 

AFFIDAVIT  OF  FRANK  HAROLD. 

Frank  Harold  being  duly  sworn  deposes  and  says: 
I  am  a  chauffeur  by  occupation  and  am  employed  at  No. 
19  West  62nd  Street,  Borough  of  Manhattan,  City  of 
New  York. 

I  recall  the  19th  day  of  January,  1911,  and  the  seeing 
of  a  person  whom  I  afterwards  learned  to  be  Theodore 
Dale  of  No.  71  West  45th  Street,  pursuing  an  unknown 
man  through  and  along  West  45th  Street,  which  un- 
known man  was  carrying  a  revolver  or  pistol,  which 
afterwards  turned  out  to  be  loaded  with  two  blank  cart- 
ridges. The  said  unknown  man  and  Mr.  Dale  were  ap- 
proaching the  little  booth  occupied  by  me  in  the  course 


166  TWENTY  YEARS  IN  STATE'S  PRISON 

of  my  business  as  taxi-starter  for  the  Hotel  Webster,  and 
I  took  hold  of  the  unknown  man,  I  wrenched  the  revolver 
from  his  hand  and  took  possession  of  the  same.  That 
after  what  I  heard  from  the  unknown  man,  whom  I  caught 
as  aforesaid,  concerning  Mr.  Dale,  I  left  the  said  man  go. 

The  unknown  man  accused  Mr.  Dale  of  attempting  to 

practice upon  him  and  this  accusation  was  made 

in  the  presence  and  hearing  of  Mr.  Dale,  and  the  said 
Mr.  Dale  did  not  deny  the  accusation,  and  I  thereupon 
let  the  said  unknown  man  go. 

In  the  struggle  between  the  said  unknown  man  and 
myself,  I  got  hold  of  the  wrist  of  the  left  hand  of  the 
said  unknown  man  and  my  fingers  scratched  the  left  wrist, 
and  tore  the  skin  thereon  slightly. 

I  am  sure  that  the  person  whom  I  got  hold  of  at  the 
said  time  and  place,  bore  marks  of  the  struggle,  par- 
ticularly the  said  back  or  outside  portion  of  the  wrist 
were  injured  and  the  skin  broken. 

I  took  possession  of,  and  retained  the  said  revolver 
and  blank  cartridges,  and  took  out  the  said  blank  cart- 
ridges and  examined  the  same,  and  later  in  the  morning 
of  the  said  day,  Detective  Cousins,  then  attached  to  the 
88th  Street  police  station,  arrived  and  questioned  me 
about  the  case  and  I  turned  over  to  him  the  said  revolver 
and  blank  cartridges  separately. 

I  am  sure  that  the  man  whom  I  caught  and  who  was 
pursued  by  Mr.  Dale,  had  marks  on  the  back  or  outside 
of  the  wrist  of  his  left  hand. 

I  make  this  affidavit  voluntarily. 

FRANK  HAROLD. 
Sworn  to  before  me  this  9th 

day  of  October,  1911. 
B.  A.  CHISHOLM,  No.  221, 
Notary  Public, 
New  York  County. 
(Seal.) 


TWENTY  YEARS  IX  STATE'S  PRISON  167 


AFFIDAVIT  OF  EDWARD  J.  COUSIN. 

Edward  J.  Cousin,  being  duly  sworn,  deposes  and  says : 
I  am  Acting  Detective  Sergeant,  1st  Grade,  of  the  Police 
Department  of  the  City  of  New  York,  and  am  at  present 
attached  to  the  35th  Precinct,  in  the  Borough  of  Manhat- 
tan, City  of  New  York,  as  detective. 

I  recall  the  19th  day  of  January,  1911,  and  my  being 
called  to  the  house  of  one  Theodore  B.  Dale,  at  71  West 
45th  Street,  Manhattan,  between  nine  and  ten  o'clock  in 
the  morning  of  said  19th  day  of  January,  1911,  he  having 
telephoned  to  the  police  station  that  an  unknown  man 
had  gained  access  to  his  (Dale's)  premises  a  short  time 
before,  on  the  pretext  that  he  was  a  telephone  repairer, 
and  on  being  asked  for  his  credentials  had  threatened 
him  (Mr.  Dale)  and  his  servants  with  a  pistol  and  had 
then  run  out  of  the  house  and  escaped. 

On  arriving  at  Mr.  Dale's  house,  I  was  informed  by 
him  that  the  unknown  man  had  run  eastwardly  in  the 
direction  of  Fifth  Avenue  and  had  been  stopped  in  front 
of  the  Hotel  Webster  on  the  opposite  side  of  45th  Street 
by  a  chauffeur  who  was  a  taxicab  starter  for  the  said 
hotel,  and  who  had  taken  the  pistol  away  from  the  said 
unknown  man  and  then  allowed  him  to  escape. 

I  accordingly  went  to  the  taxicab  starter's  booth  on 
the  sidewalk  in  front  of  the  Hotel  Webster,  and  saw  the 
chauffeur,  whose  name  I  afterward  learned  was  Frank 
Harold,  who  had  stopped  the  unknown  man  and  taken 
his  pistol  away.  Harold  told  me  that  he  had  allowed  the 
unknown  man  to  escape  because  he  had  informed  him  that 
this  man,  meaning  Dale,  wanted  to . 

Mr.  Harold  gave  me  the  pistol  he  had  taken  from  the 
unknown  man  and  two  blank  cartridges  that  he  said  he 
had  taken  from  the  chambers  of  the  pistol,  which  he  told 
me  had  been  otherwise  unloaded. 


168  TWENTY  YEAES  IN  STATE'S  PRISON 

I  handed  in  the  pistol,  and  the  two  blank  cartridges 
separately,  as  Mr.  Harold  gave  them  to  me,  at  the  Prop- 
erty Clerk's  office  at  Police  Headquarters  shortly  after- 
ward. 

EDWARD  J.  COUSIN. 

Sworn  to  before  me  this 
16th  day  of  October,  1911. 
EGBERT  A.  GAY, 
Notary  Public, 
(Seal)     N.  Y.  Co.  416. 


AFFIDAVIT  OF  J.  B.  RANSOM. 

In  the  matter  of  the  examination  of  Alfred  B.  Schwitof- 
sky,  No.  9693,  a  convict  now  confined  in  Clinton  Prison, 
in  the  County  of  Clinton,  State  of  New  York,  personally 
came  before  me,  a  Notary  in  and  for  the  aforesaid  county 
and  state,  Dr.  B.  Ransom,  physician  to  Clinton  Prison, 
and  who,  being  duly  sworn,  declares  that  he  has  examined 
the  above-named  convict  with  a  view  to  determining  the 
presence  of  scars  on  the  wrists  of  the  aforesaid  convict : 

That  he  has  carefully  examined  said  convict  and  finds 
on  the  outer  aspect  of  the  left  wrist,  with  palm  upwards, 
some  fine  radiating,  linear  scars,  to  wit:  one  irregular 
scar  one  and  three-eighth  inches  in  length,  one  radiating 
one-half  inch,  and  one  horizontal  scar  one-half  inch.  That 
these  scars  were  evidently  made  by  a  thin,  sharp  instru- 
ment, and  are  of  long  standing.  Further,  that  there  are 
no  scars  that,  in  his  judgment,  were  made  within  one 
year,  and  that  there  are  no  scars  on  the  back  of  the  wrists 
or  arms  of  the  aforesaid  convict. 

He  further  declares  that  he  has  practiced  medicine  for 
the  past  thirty-one  years,  has  been  physician  to  Clinton 


TWENTY  YEARS  IN  STATE'S  PRISON  169 

Prison  since  May  15,  1889,  and  that  he  has  no  interest 
directly  or  indirectly  in  the  case  of  convict  Schwitofsky. 

J.  B.  RANSOM, 
Affiant's  Signature. 

Sworn  to  and  subscribed  before  me  this  27  day  of  Oct., 
1911,  and  I  hereby  certify  that  the  affiant  is  a  practicing 
physician  in  good  professional  standing ;  that  the  contents 
of  the  above  declaration  were  fully  made  known  to  him 
before  swearing,  and  I  have  no  interest,  direct  or  indirect 
in  this  matter. 

J.  H.  SIGNOR, 
(Seal)     Notary  Public. 

AFFIDAVIT  OF  JULIUS  B.  RANSOM. 

Julius  B.  Ransom  being  duly  sworn,  deposes  and  says : 
I  am  a  physician  and  surgeon  duly  licensed  to  practice  in 
the  State  of  New  York  and  have  been  a  physician  for  the 
past  31  years. 

I  am  the  prison  Physician  for  the  Clinton  Prison  and 
have  examined  Alfred  V.  Schwitofsky,  a  convict  now  con- 
fined therein  and  is  known  as  No.  9693. 

That  on  the  16th  day  of  November,  1911,  I  made  an 
examination  of  both  wrists  of  the  said  Alfred  V.  Schwit- 
ofsky by  the  aid  of  a  microscope  and  from  such  examina- 
tion I  am  able  to  state  that  the  back  of  the  wrists  of  the 
said  Alfred  V.  Schwitofsky  show  no  evidence  of  marks 
or  scars  thereon,  and  it  is  my  opinion  as  such  physician 
and  surgeon,  that  if  the  skin  upon  the  back  of  the  wrist  or 
wrists  of  the  said  Alfred  V.  Schwitofsky  had  been  broken 
or  lacerated,  or  in  anywise  injured,  the  same  would  be 
noticeable  upon  a  microscopic  examination,  and  the  skin 
on  the  back  of  the  wrist  show  evidence  of  the  same. 

I  am  further  of  the  opinion  that  marks  or  scars  as  a 


170 

result  of  the  breaking  or  laceration  of  the  skin  upon  the 
wrists  of  a  person  would  remain  and  be  noticeable  under 
a  microscope  for  at  least  five  years  after  the  injury. 

The  said  Alfred  V.  Schwitofsky  has  no  injuries  upon 
his  wrists  other  than  those  mentioned  in  my  former  affida- 
vit sworn  to  before  me  on  October  27th,  1911. 


JULIUS  B.  RANSOM. 


Sworn  to  before  me  this 
16  day  of  November,  1911. 

J.  H.  SIGNOB, 
(Seal)    Notary  Public. 


TWENTY  YEAKS  IN  STATE'S  PKISON  171 


OPINION. 

COUKT  OF  GENERAL  SESSIONS  OF  THE  PEACE,  CITY  AND  COUNTY 

OF  NEW  YORK. 

''This  is  a  motion  for  a  new  trial  under  sub-division 
7,  of  Section  465,  of  the  Code  of  Criminal  Procedure. 

"The  defendant  was  indicted  for  burglary  in  the  sec- 
ond degree  and  assault  in  the  first  degree,  as  second 
offenses.  The  indictment  was  filed  February  9,  1911,  and 
the  defendant  came  to  trial  thereunder  on  June  1st,  1911. 

"In  support  of  the  charge,  the  prosecution  produced 
witnesses  who  testified  substantially  that  on  the  morning 
of  January  19th,  1911,  the  defendant  rang  the  door-bell 
of  the  premises  of  71  West  45th  Street  and  demanded 
admission  to  the  house,  stating  that  he  was  in  the  em- 
ployment of  the  Telephone  Company  and  that  he  came 
to  repair  the  telephone  in  the  house.  Having  gained  ad- 
mission, he  proceeded  to  the  telephone  booth  with  a  coil  of 
electric  wire  in  his  hand.  Shortly  thereafter,  the  pro- 
prietor of  the  establishment  enquired  of  the  defendant 
what  he  was  doing  there,  to  which  he  replied  that  he 
was  from  the  New  York  Telephone  Company ;  whereupon 
the  proprietor  requested  the  defendant  to  show  his  badge 
of  employment,  to  which  he  replied,  'Here's  my  book  of 
instruction.'  The  proprietor  repeated  his  request  for 
the  badge  and  on  the  failure  of  the  defendant  to  produce 
it,  the  proprietor,  in  the  presence  and  hearing  of  several 
employees  of  the  establishment  and  in  the  presence  and 
hearing  of  the  defendant,  directed  the  telephone  operator 


172 

to  enquire  of  the  Telephone  Company  whether  anyone 
had  been  directed  to  repair  the  telephone ;  whereupon  the 
defendant  started  to  leave  the  establishment.  The  pro- 
prietor and  several  employees  attempted  to  prevent  his 
leaving  by  placing  themselves  between  the  defendant  and 
the  closed  door.  The  testimony  for  the  prosecution  shows 
that  the  defendant,  then  taking  a  loaded  revolver  from 
his  pocket,  said,  'You  won't  let  me  out;  you  won't;  I'll 
shoot  you  if  you  don't  let  me  out,'  and  that  as  the  de- 
fendant went  toward  the  door,  he  levelled  his  revolver 
toward  persons  present  and  repeated  his  threat,  'You 
won't  let  me  out;  you  won't?  Well,  I'll  shoot  you.' 
He  then  escaped  and  in  the  presence  of  the  employees  was 
chased  by  the  proprietor  through  the  street.  The  testi- 
mony shows  that,  at  a  short  distance  from  the  establish- 
ment, the  defendant  was  held  by  a  chauffeur  until  the 
complainant  arrived.  Thereupon  the  defendant  charged 
that  the  complainant  had  attempted  to  kill  him  (defend- 
ant) and  made  other  criminal  charges  against  complain- 
ant. The  chauffeur  then  released  the  defendant,  who  was 
followed  by  the  complainant  to  a  car  on  which  the  defend- 
ant escaped.  About  a  fortnight  thereafter,  the  defend- 
ant was  placed  under  arrest  by  an  officer  of  the  Police 
Department,  and  was  subsequently  held  for  trial  in  this 
Court. 

"The  defendant's  motion  is  based  on  alleged  newly 
discovered  evidence  as  to  his  identity,  on  the  theory  that 
certain  scars  on  his  wrist  were  relied  upon  to  a  material 
extent  to  prove  his  identity  as  the  actual  offender. 

"On  the  People's  case,  four  witnesses,  three  of  them 
employees  of  the  Dale  establishment,  and  Dale,  the  pro- 
prietor, swore  to  the  identity  of  the  defendant.  Accord- 
ing to  the  testimony  of  Dale,  the  defendant  was  seen  in 
the  neighborhood  of  his  establishment  the  day  before. 
The  three  employees  testified  to  their  presence  in  the 
room  on  the  occasion  when  it  is  alleged  that  the  defendant 


TWENTY  YEAES  IN  STATE'S  PKISON  173 

entered  the  house,  went  to  the  telephone  and  afterwards 
drew  a  loaded  revolver  upon  them  with  a  threat  to  shoot. 
All  four  witnesses  declare  that  they  recognized  the  de- 
fendant and  were  positive  in  their  testimony  as  to  his 
identity.  On  that  branch  of  the  case  no  other  witnesses 
were  called  by  the  prosecution.  On  the  cross-examina- 
tion of  Officer  Brown,  who  made  the  arrest,  he  stated  that 
having  arrested  defendant,  he  brought  him  to  the  chauf- 
feur, who  stopped  and  held  a  man  who  was  running  from 
the  direction  of  the  Dale  establishment  on  the  date  of 
the  alleged  burglary. 

"On  the  part  of  the  defense,  the  defendant,  on  his  di- 
rect-examination, declared  that  after  his  arrest  he  was 
taken  by  the  police  officer  to  the  chauffeur,  and  that  the 
officer  said  to  the  chauffeur,  'This  is  the  man  I  was  tele- 
phoning you  about. '  The  defendant  testified  as  follows : 
'They  looked  me  over,  made  me  take  off  my  hat;  one 
chauffeur  said,  "Show  me  your  left  wrist,"  and  then  re- 
marked, "Well,  I  guess  that's  the  man." 

"On  re-cross-examination,  the  attorney  for  the  prose- 
cution asked  the  defendant:  'Q.  Now  the  reason  the 
chauffeur  wanted  to  look  at  your  wrist  was  that,  at  the 
time  he  stopped  you,  your  wrist  was  cut  by  his  nail, 
wasn't  it?'  to  which  the  defendant  answered  'No.' 
Thereupon  the  District  Attorney  asked  *Q.  Well,  what 
did  he  want  to  look  at  your  wrist  fort'  and  the  defendant; 
answered:  'A.  He  wanted  to  look  at  my  wrist  and  ex- 
amined my  wrist,  and  then  shook  his  head.' 

"Again,  on  redirect-examination,  the  attorney  for  the 
defendant  asked  him  to  repeat  the  statement  made  by  the 
chauffeur,  which  was  done. 

"The  Court  instructed  the  defendant  that  he  might 
make  any  explanation  that  he  desired  to  make  concern- 
ing the  charge  against  him.  The  foreman  of  the  jury 
questioned  defendant  about  the  scar  on  his  wrist  and 
asked  him  how  he  came  by  it.  The  defendant  answered 


174  TWENTY  YEARS  IX  STATE'S  PRISON 

that  he  inflicted  the  injury  upon  himself  in  the  year  1908. 

"After  the  closing  arguments  had  been  made  and  while 
the  Court  was  charging  the  jury,  he  was  interrupted  by 
the  defendant's  counsel,  who  stated  that  defendant 
desired  to  make  a  statement  to  the  jury  regard- 
ing the  mark  on  his  arm;  whereupon  the  Court  asked 
if  he  desired  to  reopen  the  case,  to  which  counsel  ans- 
wered that  he  did  not,  but  that  defendant  desired  to  make 
a  statement  with  regard  to  the  mark  on  his  wrist.  The 
Court  stated  to  counsel  for  defendant  that  the  matter 
had  already  been  gone  into,  and  denied  the  request. 

"Three  of  the  affiants  whose  affidavits  are  a  part 
of  the  moving  papers  were  accessible  at  the  time  of  the 
trial  and  their  testimony  could  have  been  procured.  I 
do  not  believe  that  any  additional  testimony  by  them 
would  have  changed  the  verdict  of  the  jury;  nor  would 
testimony  of  the  microscopic  examination  of  the  scars, 
three  years  after  they  were  made,  have  that  effect,  par- 
ticularly in  view  of  the  fact  that  the  defendant  testified 
that  they  were  made  by  himself  in  1908,  which  testimony 
was  uncontradicted. 

"In  my  opinion,  the  defendant  was  fairly  tried.  Two 
reliable  and  experienced  attorneys  were  assigned  to  the 
defendant  by  the  Court.  They  had  ample  time  to  acquaint 
themselves  with  every  phase  of  the  case,  and  I  believe 
were  familiar  with  all  the  facts  and  circumstances  and 
could  have  adduced  the  testimony  upon  which  it  is  now 
sought  to  obtain  on  a  new  trial.  I  regard  the  verdict  as  a 
just  one.  After  a  careful  consideration  of  the  moving 
papers  and  the  minutes  of  the  trial,  I  can  find  nothing  to 
justify  the  granting  of  the  motion,  and,  therefore,  it  is 
denied. 

"Dated,  New  York  City,  February  23rd,  1912. 

"THOMAS  C.  0 'SULLIVAN, 

"J.  C.  G.  S." 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


DfcCj.h8j53? 

PEftMteff 

"ftONT^T^SflSK 

DfSOH/Utie 

NOV  481982 

V" 

u^isflHf 

HM         Turu  x  -*-0  iwwW 

• 

Form  L9-50m-7,'54(5990)444 


THE  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 


, 
!!!*! 

HIM 


